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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


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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