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47 First Amend. Stud. 1 (2013)

handle is hein.journals/firsamtu47 and id is 1 raw text is: First Amendment Studies, 2013 1 Routledge Vol. 47, No. 1, 1 19, http://dx.doi.org/10.1080/08997225.2012.732759 Tyl&F-dG up Rereading New York Times v. Sullivan: The Importance of Procedure in Libel Cases Dale A. Herbeck The Supreme Court's landmark decision in New York Times v. Sullivan is notable because it imposed an actual malice test that makes it difficult for public figures to recover damages for defamation claims. The intent of this essay is not to minimize the significance of Sullivan, but rather to suggest that most accounts of the case miss one crucial aspect of the Court's decision. To obtain the desired result-to overturn the jury verdict in Sullivan's favor-justice Brennan's majority opinion created both a substantive standard and a series of procedural safeguards. The actual malice test has been praised as a bulwark of First Amendment freedoms, but absent the accom- panying protections laid out by Justice Brennan, it would be a hollow promise as it is the procedural safeguards that guarantees debate on public issues is uninhibited, robust and wide open. Keywords: Actual Malice; Chilling Effect; Defamation; Libel; New York Times v. Sul- livan; Procedural Safeguards In New York Times v. Sullivan, the Supreme Court extended First Amendment protection to a class of defamation-that which is directed at officials of the gov- ernment. The constitutional guarantees require, Justice William Brennan wrote, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that 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.' In his concurring opinion, Justice Hugo Black voiced serious reservations about the actual malice test set out by Justice Brennan. According to Justice Black, malice is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right to critically discuss public affairs and certainly does not measure up to Dale A. Herbeck is at Northeastern University. Correspondence to: Dale A. Herbeck, 204 Lake Hall, North eastern University, Boston, MA 02115, USA. Email: d.herbeck@neu.edu © 2013 National Communication Association

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