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Under traditional common law, a plaintiff could recover damages for libel if she could prove that the defendant had published a factual statement about the plaintiff that tended to injure the plaintiff’s reputation. The plaintiff, at most, was required to show negligence to recover damages for libel. While the amount of money that any given plaintiff could recover in damages was uncertain, one thing was clear: the First Amendment would not protect libel. In 1964, in New York Times Co. v. Sullivan, the Supreme Court radically upended this received view of libel as unprotected speech. According to Sullivan, if the plaintiff was a public official and the statement said about him was a matter of public concern, the plaintiff would have to prove “actual malice.” Under Sullivan’s actual malice test, the plaintiff faced the daunting task of having to prove that the defendant made the libelous statement knowing that it was false or with reckless indifference as to its truth or falsity. The actual malice test thus afforded extraordinary and unprecedented protection for political speech which was otherwise libelous. While the notion of protecting libel might seem morally objectionable, the Sullivan Court was adamant that doing so was essential to protect the right of political criticism. The Sullivan Court argued that the actual malice test would quell the fear of self-censorship that speakers would otherwise likely suffer in the absence of the test. The Court was not alone in its support of the actual malice test. Since its inception in Sullivan, the actual malice test has been celebrated as perhaps the most monumental contribution to First Amendment jurisprudence.

Over the years, however, the actual malice test has been met with intermittent skepticism. In a lone concurrence from 2019, Justice Thomas urged the Supreme Court to “reconsider” whether the actual malice test should endure at all. He emphasized that “there appears to be little historical evidence suggesting that the [Sullivan] actual-malice rule flows from the original understanding of the First or Fourteenth Amendment.” Similarly, Judge Silberman of the D.C. Circuit Court of Appeals recommended in 2021 that the actual malice test should be rejected in its entirety because it was an attempt to “dress up policymaking in constitutional garb.” Like Justice Thomas and Judge Silberman, this Article calls for the wholesale elimination of the actual malice test.

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Florida State University Law Review



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Actual malice test, libel, New York Times Co. v. Sullivan



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