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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Is Defamation Law Outdated?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handle is hein.journals/falr20 and id is 8 raw text is: IS DEFAMATION LAW OUTDATED?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
Amy Kristin Sanders & Kirk Von Kreisler*
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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