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5 Cardozo L. Rev. 867 (1983 - 1984)
Press Privacy and Malice: Reflections on New York Times Co. v. Sullivan

handle is hein.journals/cdozo5 and id is 877 raw text is: COMMENTARY PRESS PRIVACY AND MALICE: REFLECTIONS ON NEW YORK TIMES CO. v. SULLIVAN Irving R. Kaufman* What is the measure of a landmark judicial decision? It should possess a multifaceted character whose complexities consume the at- tention of scholars and judges years after it is rendered. Its clear and compelling reasoning should force a rethinking of an area of law in entirely new terms. And, if truly groundbreaking, it should mark a departure so profound that legal discussion thereafter must distinguish the law as it was from the law as it thereby became. By all these tests, I submit, New York Times Co. v. Sullivan' was indeed a milestone. Having served on the federal bench for thirty-five years, I im- agine that I may be forgiven for overstating the importance of a judicial opinion now and again. But I do not think it extravagant to say that the Sullivan case was a jurisprudential landmark. It was one of those rare decisions that sought to weave together diverse threads of constitutional and common law into that seamless legal web for which we are ever striving. I trust I will disturb no one's illusions by pointing out that this effort, though valiant, was not entirely successful. A quick glance at the ever-growing body of literature in this area demonstrates that numerous loose ends remain to be tied up in the law of libel. More to the point, Sullivan and its progeny have engendered a'firestorm of criticism-both from those who view the cases as excessively toler- ant of irresponsible journalism, and from those who find them a vehicle for chilling the first amendment rights of the press. In this Article, I shall attempt to elucidate the reasons for the controversy sparked by Sullivan, and try my hand at suggesting means through which both the courts and the press can respond to legitimate criti- cism without undermining the vital role of the news media in Amer- ican society. The dilemma I am addressing stems from a need to reconcile two competing constellations of values, both of which are central to ' Judge, United States Court of Appeals for the Second Circuit 376 U.S. 254 (1964).

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