A Constitutional Warning: Free Speech Faces New Perils
Congress could have shielded Roe now it – A faint signal appears on the constitutional horizon, one we must heed before it escalates into a blaze capable of destroying fundamental pillars of American liberty and journalism. For several years now, Supreme Court Justices Clarence Thomas and Neil Gorsuch have been casting skeptical glances at the landmark 1964 ruling in New York Times v. Sullivan. That pivotal decision established that public figures must demonstrate actual malice to succeed in defamation litigation. Recently, this concern resurfaced when the Court declined to review a case filed by Alan Dershowitz, who sought to overturn the Sullivan precedent entirely.
The Originalist Argument
Both justices maintain that the Sullivan ruling was fundamentally misguided. They argue the nation’s founders never envisioned the robust free speech protections that Sullivan established, considering them disconnected from the Constitution’s text, historical foundation, and structural design. Their critique extends even deeper. According to Thomas and Gorsuch, the founding generation actually believed public figures deserved enhanced protection against harsh public criticism. As they articulated in their reasoning, the founding era held that public figures possessed stronger entitlement to damages when defamed, rather than weaker ones.
Instead, the founding generation believed that, if anything, public figures had stronger claims for damages when they were defamed.
I embrace originalism as a methodology because it grounds legal interpretation beyond personal preferences and biases. Yet caution is essential. An anchor meant to provide stability can instead pull you downward if mishandled. Originalism loses its value when it devolves into a mechanical exercise focused solely on eighteenth-century perspectives.
Historical Context Matters
Consider that whipping and mutilation represented common punishments during the 1700s. Thomas Jefferson himself authored legislation proposing “an eye for an eye” penalties for severe assault injuries, alongside castration for sodomy, rape, and polygamy. Remarkably, this bill constituted what contemporaries considered lenient reform, failing by just one vote. Such examples demonstrate that constitutional interpretation cannot simply replicate historical practices without critical analysis.
The First Amendment and defamation jurisprudence require similar nuance. While defamation actions may have threatened free expression in the eighteenth century, contemporary conditions differ dramatically. The Founders possessed no understanding of modern mass media’s extraordinary scope or the internet’s transformative impact. Concepts like strategic lawsuits against public participation, or wealthy individuals attempting to bankrupt their critics, remained entirely foreign to eighteenth-century thinking.
Nevertheless, the founders certainly never intended for the affluent and powerful to shield themselves from scrutiny through judicial maneuvering.
Lessons from the Roe Battle
Although New York Times v. Sullivan achieved unanimous approval, today it would likely secure only seven votes out of nine. With MAGA conservatives pursuing Sullivan’s reversal as a sustained objective, deterioration seems probable. A valuable lesson emerges from the controversy surrounding Roe v. Wade. Republicans targeted that decision immediately upon its issuance. Democrats, despite receiving decades of advance notice, failed to implement protective measures.
Thomas and Gorsuch now seek to replicate Dobbs’s approach through Sullivan’s potential overturning. Their objective involves eliminating federal restrictions on defamation litigation while allowing individual states to define free speech entitlements. Had Democrats genuinely wished to safeguard Roe, they should have elevated its principles through federal legislation. When courts interpret statutes rather than constitutional provisions, they apply different standards. If Roe had simultaneously functioned as federal law alongside a Supreme Court ruling, any judicial body addressing abortion would first examine statutory requirements. Should a challenged state law contradict federal legislation, and Congress possessed broad authority to enact such statutes, the constitutional question regarding Roe would become irrelevant. Even subsequent congressional repeal of that specific statute would leave Roe’s core holding intact as established law.
In essence, had Democrats pursued this strategy when opportunity presented itself, the Dobbs decision might never have occurred. A comparable situation recently emerged during the birthright citizenship litigation. Justice Brett Kavanaugh, who harbored reservations about birthright citizenship, joined the majority upholding it because Congress had addressed the matter through legislation.
