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83 Colum. L. Rev. 603 (1983)
New York Times v. Sullivan Reconsidered: Time to Return to The Central Meaning of the First Amendment

handle is hein.journals/clr83 and id is 617 raw text is: New York Times v. Sullivan
Reconsidered: Time to Retnrn to
The Central Meaning of the First Amendment
Anthony Lewis*
Twenty years ago a professor at this law school brought to the Supreme
Court of the United States a case that became a landmark of our constitu-
tional freedom. In New York Times v. Sullivan' the Court held for the first
time that an award of damages for libel violated the freedoms of speech and
press guaranteed by the first amendment. The decision had from the first the
ring of a great occasion in the law, sensed not only in the result but in the bold
sweep of the Court's opinion, by Justice Brennan. And the occasion was in
large part shaped by Professor Herbert Wechsler. It takes nothing from
Justice Brennan to recognize, as anyone who looks into it must, that his
transforming analysis of what that libel judgment meant for freedom of
expression was based on the brief and argument of Professor Wechsler.2
This is an appropriate time to think again about that great case. It is a
time of growing libel litigation, of enormous judgments and enormous costs.
The press and its lawyers are deeply worried; the protection that they thought
was won for free expression in New York Times v. Sullivan seems to them to
be crumbling. Some would say that libel actions are a more serious threat than
ever. Now the American press is addicted to self-pity. Although it is the freest
in the world, and freer now than it ever has becn, it often cries that doom is at
hand.3 But this time even someone as skeptical of press claims as I am must
admit that there is something to the concern.
I propose to begin at the beginning: with the Sullivan case. For some, that
will mean a restatement of the familiar. But I do not apologize for that. A
landmark such as Sullivan becomes a set of symbols. What brought it to life
originally dims in our perception. At least that is true for me. So let me remind
you how it was when Herbert Wechsler filed his petition for a writ of certio-
rari on November 21, 1962.
* Columnist, New York Times; Lecturer on Law, Harvard Law School. B.A. 1948, Harvard
University. This Article is an expanded version of the second Samuel Rubin Lecture, delivered at
Columbia Law School, Oct. 21, 1982, as part of the Samuel Rubin Program For the Advancement
of Liberty and Equality through Law.
1. 376 U.S. 254 (1964).
2. Professor Wechsler represented petitioner New York Times; a report of the argument
before the Court appears at 32 U.S.L.W. 3249 (U.S. Jan. 14, 1964).
3. Editors and commentators, reacting to the Supreme Court's dccision in Herbert v. Lando,
441 U.S. 153 (1979), that journalist defendants in libel cases must answer questions on discovery
about the editorial process that led to publication of the offending matter, spoke of judicial
Agnewism and an Orwellian domain and said the decision has the potential of totally
inhibiting the press to a degree seldom seen outside a dictatorial or fascist country. See Brennan,
Address, 32 Rutgers L. Rev. 173, 179 (1979) (quoting from various newspapers).

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