Why do we have a First Amendment?

This isn’t a facetious question. In fact, it gets at the core of so many arguments surrounding originalist approaches to First Amendment jurisprudence, and why arguments that rigidly appeal to the text and history are often cherry-picked or incomplete. In most cases it would be more productive to ask ourselves, “Why did Madison and his compatriots write ‘Congress shall make no law …’ to begin with?”

The First Amendment was designed to preserve our individual expressive freedoms, to ensure that American citizens can engage in the freest possible discussion and debate, and to prevent our newfound republic from descending into tyranny. It is this spirit—of prioritizing liberty and protecting against infringements upon it—that formed our country’s ideological foundations. It simply cannot get more “literalist” or “originalist” than that. Freedom, and by extension, free expression, is literally the original point.

This is something that we can easily lose sight of when we pick Supreme Court rulings apart the way Carson Holloway does in “The Case Against New York Times v. Sullivan.” Holloway argues that the Court should overturn the “actual malice” standard for defamation of public figures established in New York Times v. Sullivan because the decision “was not rooted in the text, original meaning, or history of the Constitution.”

The Sullivan case centered on a New York Times advertisement by Civil Rights activists that contained erroneous claims maligning the Montgomery, Alabama police force. Montgomery city commissioner L. B. Sullivan seized upon these errors and sued the Times for libel. The case went to the Supreme Court, which ruled in favor of the newspaper, along with four Civil Rights advocates who were also sued. The Court concluded that the First Amendment limits the ability of public officials to use state libel law to stifle public debate. It held that public officials suing for libel must prove “the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

The Court observed:

A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable “self-censorship.” … Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of doing so.

Holloway argues that the “actual malice” standard established by the Sullivan decision cannot reasonably be drawn from the Constitution. This is, however, at best a highly contested argument. Scholars such as Wendell Bird in Criminal Dissent or Stephen D. Solomon in Revolutionary Dissent have analyzed the expansive notions of free expression that formed the basis for the First Amendment, and provide ample historical support for standards like “actual malice.”

But even if Holloway was correct, does the “actual malice” standard harmonize with the First Amendment and Founding-era attitudes toward free expression? Does the First Amendment protect against infringements upon individual expressive liberties that are the bedrock of our republic? I would argue that the answer is yes—and that this is the more reasonable and effective perspective to take for honoring and preserving our Founding documents. A near-century of First Amendment jurisprudence, during which Courts have reliably erred on the side of granting and protecting more speech rather than less, also bears this out.

Holloway contends that the First Amendment problems Sullivan brought forth were not really problems at all; the Court simply presumed that they were and reasoned from there. “No one among the Founders suggested,” he writes, “that public men who had been victimized by the publication of defamatory falsehoods could only recover damages by showing that the publisher knew that the publication was false or acted with reckless disregard for its truth or falsity.”

But if we recognize that the First Amendment was drafted to prevent infringements on American citizens’ expressive freedoms, it becomes clear that the Sullivan case, along with subsequent cases like Garrison v. Louisiana, Curtis Publishing Company v. Butts, Associated Press v. Walker, and Gertz v. Welch, do address meaningful First Amendment concerns.

The question in Sullivan is not whether falsehoods should fall within the purview of liberty or freedom of the press. Rather, it recognizes that just as there is an important difference between murder and manslaughter that hinges upon intentions, there must be a meaningful distinction between defamation committed with “actual malice” and defamatory errors. The reason for this is so that the punishment can fit the crime. If the standard is met, suing for damages is fair. If not, the consequences can and should be different. This can include policies of public correction on the part of the publishers, and public scorn on the part of citizens (including the public figure) who discover the error—both of which are already employed to great effect in our discourse and culture without government intervention.

More importantly, as the Court recognized in Sullivan, there is a need to ensure that powerful and influential figures aren’t granted the ability to silence critics—or frighten them into silence—through legal intimidation. To do otherwise would go against the principle of safeguarding public discourse that the First Amendment was drafted to enshrine.

Holloway may characterize this as “judicial activism,” whereby Supreme Court justices unconstitutionally engage in the “invention” rather than the “discovery” of the law based on “their understanding of what it would be best for the Constitution to mean.” But the Court in Sullivan did in fact look at history and original meaning, including the Virginia Resolutions and other opposition to the Sedition Act. Holloway dismisses this examination as “unpersuasive,” but doesn’t elaborate further.

Critically, Holloway also ignores the process by which the Founding generation made their decisions on what the Constitution should mean. For instance, he emphasizes the influence of the English jurist William Blackstone on the Founding generation. He argues that because Blackstone “drew a distinction … between liberty and license,” and did not believe libel belonged to the category of “freedom of the press” but rather to the kind of “improper, mischievous, or illegal” expression he labeled “licentiousness,” the Founding generation and the Constitution did not—and should not—either.

There were, however, far fewer Framers in lock-step with Blackstone than Holloway implies. In fact, he himself acknowledges the Founding generation’s deviation from Blackstone on the issue of libel. They disagreed with Blackstone’s conviction that a defamatory statement’s veracity was no defense against seeking damages. Indeed, it was the subsequent influence of Alexander Hamilton which inspired the Founding generation to abandon this perspective. This runs afoul of the notion that the Court mustn’t engage in their “own understanding of what it would be best for the Constitution to mean.” Rather, it underscores that this is precisely what granted us a superior version of the law, which protected free expression more than it otherwise would have.

As FIRE chief counsel Robert Corn-Revere put it in The Mind of the Censor and the Eye of the Beholder, the First Amendment’s utility is best understood by focusing on what the Framers were trying to prevent rather than speculating on what they wanted to promote. And there is no doubt that it was designed as a bulwark against governmental and legal control over matters of conscience, expression, and publication.

That simple realization is all it takes to recognize the constitutionality and wisdom of the “actual malice” standard that is Sullivan’s legacy. The Court rightly saw that if someone can be sued to Kingdom Come for unwittingly disseminating falsehoods about a public figure—and if there is no recourse for them on the basis of whether they did so without malice—it will inevitably lead to fewer citizens contributing to conversations of social, national, and political import. Without this, the republican form of government the Constitution promises would cease to exist, and no appeal to the “text, original meaning, or history of the Constitution” could ever bring it back.