Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
What Would It Mean to Return to the Original Meaning of the First Amendment in Libel Cases?
Justice Thomas's concurrence in the denial of review in McKee v. Cosby attracted some sympathetic commentary, mostly suggesting that the constitutional law of libel post-Times v. Sullivan goes too far in insulating from liability those who make false and reputation ally damaging statements about other people (mostly "mere" public figures, but perhaps some public officials). That's a complaint about the "policy" embodied in the current rules.
Justice Thomas grounds his criticism differently. His view is that the First Amendment does not displace state libel law at all. The reason lies in what he presents as the original meaning/public understanding of the First Amendment.
On Justice Thomas's view, state courts developing their local law of libel and state legislatures displacing that law (if they choose) are free to impose liability on those who make false statements that damage reputation, without constitutional limitations. Notably, at common law (in some jurisdictions) truth was a defense and damages could be presumed, meaning that a plaintiff who proved that the defendant had published a reputation-damaging statement could be awarded damages unless the defendant established to the jury's satisfaction that the statement was true.
One might argue that press freedom today would not be substantially endangered by that position for political-economy reasons (some of which weren't really operating in 1791 or 1868). The thought would be that local publishers, likely targets of at least some libel suits, would have enough political clout to get "appropriate" limits placed on libel law -- maybe not the Times v. Sullivan limits, but also probably not a rule that libel cases are a free-fire zone with publishers as targets.
The obvious point, illustrated by Times v. Sullivan itself, is that out-of-state publishers aren't in a position to raise their (distinctive?) concerns in the within-state political process. Perhaps one could invoke original-meaning arguments based on some other clause (the Commerce Clause?) that a local libel law that discriminated in terms or (substantially) in effect against out-of-state publishers was unconstitutional. (Justice Thomas's originalist qualms about dormant Commerce Clause doctrine haven't gone to the "nondiscrimination" branch of that doctrine, if I'm remembering correctly.) And the Court might reasonably reconsider Calder v. Jones's ruling that First Amendment considerations are irrelevant to determining whether an out-of-state publisher's contacts with a state were sufficient to support jurisdiction over the publisher. In Calder Justice Rehnquist justified the First Amendment's irrelevance because taking free speech concerns into account at the jurisdictional stage would be double-counting (his term) those concerns, which are taken into account in the post-Sullivan constitutional law of libel.
The real gap in Justice Thomas's argument, though, isn't about the common law of libel as of 1791 (or 1868, about which he had little to say). The real gap is this: The analysis in Times v. Sullivan is driven by concerns about the "chilling effect" libel rules can have on the publication of truthful statements that damage reputation. So, the full case against Times v. Sullivan on originalist grounds has to show that the First Amendment wasn't understood to embody a rule that chilling effects had some role in shaping the law affecting publishers. And that case would, I think, be difficult to make.
We know that "chilling effect" ideas were explicitly invoked in the debates about the adoption of the Sedition Acts later in the 1790s, and it's highly unlikely that they weren't "in the air" before then. If they were part of the public understanding of the First Amendment -- and Justice Thomas doesn't show that they weren't -- then all that's left is bargaining over the price, that is, determining how chilling-effect ideas should shape the constitutional law of libel. Justice Thomas derives the debate over that question as involving "policy" rather than constitutional law. But, in the absence of a showing that chilling-effect ideas weren't part of the public understanding of the First Amendment in 1791, the policy questions are questions of constitutional law.
(There's one possibility that should be noted: Maybe the chilling-effect ideas had been given sufficient specific content within the public understanding that the Supreme Court has no work to do on that question. For me, that possibility is wildly implausible [in the sense that I know a fair amount of what's been written about the public understanding of free speech in the founding era and don't know of anything arguing that the chilling-effect ideas had been brought to ground in the suggested way]. And, just to fill out the picture, the modern academic idea of constitutional construction -- an idea that has barely penetrated originalism as articulated on the Supreme Court -- is fully adequate to support fleshing out chilling-effect ideas with reference to post-1791 practice. In my view, that's what Justice Brennan was doing when he referred to "the court of history" and its verdict on the constitutionality of the Sedition Act.)