Last month, Carson Holloway argued in Law & Liberty’s forum on New York Times v. Sullivan that the Supreme Court “owes it to the nation” to reconsider and ultimately overrule this defining First Amendment case. He has made this argument in Law & Liberty before. He is mistaken.

Sullivan declared that the First Amendment has a “central meaning”: that citizens in a democracy have a right to criticize government officials without fear of ruin. The Court made this principle a reality by establishing the “actual malice” requirement. Before enforcing a damages judgment or sending a citizen to jail, courts going forward were to require clear and convincing proof that the alleged defamer of a public official published the defamatory statement knowing it was false or with a high degree of awareness of its probable falsity.

The rule has proven a potent protection for press freedom. But for Holloway, it is a modern invention that is not “based on the original understanding of the First Amendment.” We agree with Angel Eduardo that this argument is “at best” “highly contested.” Having spent our careers defending press freedom (in the case of one of us, that includes two trips to the Supreme Court), we write to explain what exactly Holloway got wrong.

Initially, Holloway’s originalism argument is a red herring. The defamation tort is a creature of state law and the First Amendment at the Founding only imposed limits on the federal government. (It is noteworthy, though, that Madison viewed his unsuccessful amendment that would have prohibited state infringements on liberty of the press as more valuable than the First Amendment.) So it should be expected that there is no evidence that the Founding generation understood the First Amendment as a limit on state libel law. (Even so, Jefferson, perhaps anticipating the Sedition Act of 1798, thought the First Amendment ought to impose limits on libel.)

This is not to say that Sullivan cannot be defended on an originalist basis. New Jersey governor William Livingston, who would later sign the Constitution, suggested such a rule as early as 1784. In a series of essays about the right to criticize the government, Livingston argued, “Printers often innocently publish what is false, believing it to be true. Were they to be liable for such error, I know not what news they could give us.”

But we cannot look only at the Founding as Holloway suggests. The promise of a federal protection for speech and press that imposed limits on state law, including state libel law, would not begin to be realized until 1868 when the states ratified the Fourteenth Amendment. So in considering whether Sullivan has historical support, we should consider the history of the conflict between libel and liberty of the press at least through reconstruction, as John McGinnis nods at in his forum contribution.

Even Holloway relies on post-ratification history, agreeing with Hamilton who, fifteen years after Madison proposed the First Amendment, argued that truth should be a defense to libel. (At common law, as Eduardo explains, truth was not a defense.) To avoid becoming the target of his own criticisms, Holloway contends that Hamilton’s argument was not really a later development but simply a reflection of the original meaning of the Press Clause at the Founding. We agree that there is Founding-era evidence in favor of the truth defense, but if Hamilton’s argument was simply “representative” of a widely held original understanding as Holloway suggests, we wonder why Hamilton lost the case.

The Court no more invented actual malice in 1964 than Hamilton invented the truth defense in 1804. The Court, like Hamilton, repurposed as a constitutional principle an actual malice-like rule that, like the truth defense, had been gaining a foothold in the United States. The protection of honest misstatements of fact had gained increasing acceptance in the nineteenth century, so much so that the Court invoked it in Sullivan as a useful historical analog, citing nearly twenty sources long predating its decision. This was perfectly proper. A hundred years before Sullivan, Thomas Cooley observed that common law privileges developed to blunt libel laws “for some reason of general public policy” could be considered “constitutional” in nature.

We can trace the lineage of this rule back to England in the 1780s, where courts developed a privilege for masters to convey information about their servants. This privilege was extended by analogy in America: the “master” being the American public and the “servants” their agents in government. “If information given in good faith to a private individual of the misconduct of his servant is ‘privileged,’ equally so must be a communication to the voters of a nation,” one court explained. On that basis, courts developed an American privilege that immunized honest misstatements of fact about public officials.

So, Holloway is simply wrong to argue that early American courts merely applied England’s “traditional libel standards,” or ceased innovating in this area after Hamilton’s case in 1804. As one judge observed in 1838, “the liberty of speech and of the press is now a very different thing from what it was.” That Holloway overlooks this historical reality and, more specifically, the early development of a rule protecting even false statements from liability—a development inconsistent with his tidy reading of the history of libel in this country—seriously undermines his argument.

Undeterred, Holloway leans heavily on the English jurist William Blackstone. “It is fair to say,” Holloway argues, that “the Founding generation adopted in its essentials” Blackstone’s expansive views on libels and narrow views on press freedom. Eduardo is right to push back on this, as one of us has elsewhere. “What a miserable opinion must such men have of you my countrymen to hope by this [Blackstonian] doctrine to lure you to your ruin?” one colonist lamented in 1767. Or, as soon-to-be Justice William Cushing wrote to John Adams in 1789 in rejecting Blackstone: Blackstone’s view “is, no doubt, the liberty of the press,—as allowed by the law of England,” but the question is what “is law now, here.”

Holloway also repeatedly contends that Sullivan undermined American democracy and public discourse more broadly. He provides no evidence to support this argument. To the contrary, as Chief Justice William Rehnquist, no friend of Sullivan, observed; Sullivan had made “American public officials more accountable, the American media more watchful, and the American people better informed.”

Holloway’s assessment proceeds solely on the assumption that actual malice “encourages journalists to run sensationalistic stories without fact-checking them.” This is a lawyer’s argument. It assumes that journalists are sitting around thinking about actual malice. Doubtful. And, it supposes that journalists are okay inviting liability over outrageous false statements where their only defense would be actual malice. Even more doubtful. More likely and speaking from experience, journalists are animated by professional norms, chief among them reporting the truth about matters of public concern.

Holloway also insists that the actual malice requirement is in need of reform because it is nearly impossible to meet. It is hard to take this criticism seriously considering blockbuster settlements or jury verdicts in cases like ABC’s “Pink Slime” saga ($177 million), Dominion Voting Systems v. Fox News (nearly $800 million), and, recently, Sapulpa v. Gannett, where a high school football coach obtained a $25 million verdict. (A white paper we were among co-authors for further puts the lie to this argument.)

Nevertheless, Holloway laments the “indefensible inequality” of requiring public people to prove actual malice but not requiring the same of private individuals. It amounts, he says, to “a kind of class system.” For the actual malice rule to create true inequality though, Holloway would need to show that public persons are similarly situated to private persons. As even Holloway’s supporters admit, they are not.

His supporters are in good company. The importance of press freedom, the Continental Congress wrote in 1774, was that it allowed for “oppressive officers” to be “shamed or intimidated” into more just conduct. James Wilson, on whom Holloway relies elsewhere, later explained that the circumstance “of office ought to incline the beam … because an officer is a citizen and more.” Judge Robert Bork, himself no stranger to the sting of public scrutiny, more recently observed of public figures generally, “those who step into areas of public dispute, who choose the pleasures and distractions of controversy, must be willing to bear criticism, disparagement and even wounding assessments.”

In the end, the actual malice requirement is the product of a judicial exercise in “definitional balancing,” a well-established and inescapable process of constitutional adjudication that, in this context, provides meaning to the First Amendment’s text. In Sullivan, that process required the Court, which had previously held that “libel,” like “obscenity” or “fighting words,” is not “speech” within the meaning of the First Amendment, to decide exactly what the unprotected category of “libel” includes. Based on the Founders’ understanding, not simply of the “freedom of the press,” but also of the representative government they created, the Court determined that the definition of unprotected “libel” must be limited to “calculated falsehoods.”

That definition (as one of us argued elsewhere) serves the needs of citizens in a self-governing democracy to monitor and criticize their leaders and inform themselves about public matters, as well as the concomitant necessity of holding accountable those who would pollute public debate through the intentional dissemination of misinformation. By the same token, when (as Glenn Reynolds recognizes in principle) government officials weaponize state tort law, not to recover damages for harm to reputation, but to bring our constitutionally protected national discourse to heel, “it’s plausible that … the First Amendment might reach farther than it has historically reached in libel cases.” To borrow Holloway’s verbiage, this is what “brings to light the moral principles that inform defamation law.”