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20 First Amend. L. Rev. 1 (2022)
Is Defamation Law Outdated? How Justice Powell Predicted the Current Criticism

handle is hein.journals/falr20 and id is 8 raw text is: IS DEFAMATION LAW OUTDATED? HOW JUSTICE POWELL PREDICTED THE CURRENT CRITICISM Amy Kristin Sanders & Kirk Von Kreisler* ABSTRACT Defamation law has seen no shortage of high-dollar verdicts in recent years, but public attacks from influential public officials, including sitting U.S. Supreme Court justices, on foundational speech protections are just as concerning. That said, they aren't necessarily all that novel. Justice Lewis Powell's personal papers reveal his earlier desire to shift the balance of protection, which had steered heavily toward free speech back in favor of individual reputation. As we've found, many of today's arguments in favor of abandoning the New York Times actual malice rule likely draw their inspiration from Justice Powell's desire to fundamentally alter defamation law by re-elevating the state's interest in protecting individuals' reputations-which he articulated in his Gertz v. Welch and Dun & Bradstreet v. Greenmoss Builders opinions decades ago. Justice Neil Gorsuch's recent criticisms of defamation jurisprudence run parallel to Justice Powell's, and they offer free speech proponents an important opportunity to address these concerns. Amy Kristin Sanders is an associate professor in the School of Journalism & Media at the University of Texas at Austin. Kirk Von Kreisler is a legal analyst and a graduate of the University of Texas at Austin.

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