Document Type
Article
Publication Title
University of Chicago Law Review
Abstract
The question on everyone's lips is: What went wrong? Why a winter of discontent after a springtime of unrestrained joy? In part the problems may have little to do with any of the rules of defamation. The law of tort is far more active today than it was a generation ago, as we have witnessed a continued expansion of liability and escalation of verdicts in such areas as medical malpractice and products liability. The shifts in defamation could simply reflect the larger social trends in other areas, and have little to do with what the Supreme Court did to the law of defamation itself.9 There are many reforms that should be made in the conduct of discovery, and in the handling of civil litigation generally, which would have a substantial effect upon the law of libel. Yet there is also profit in focusing on the law of defamation itself as a source of the present discontent, and it is that possibility that I shall explore here. Given the unforeseen expansion in liability for defamation, one could argue that the New York Times rule is wrong because it did not go far enough. In an odd sense, abolishing the law of defamation against public officials in its entirety would provide a belated vindication of the Black and Douglas position in New York Times, that the first amendment establishes an absolute ban against all libel actions. This way of framing the question presupposes that the right response to the present uneasiness is to limit defamation actions even further. It regards the interest of the press as dominant, so that once we can identify a chink in its legal armor, the proper response is to afford the press still greater protection by edging closer to the absolute privilege.
First Page
782
DOI
https://doi.org/10.2307/1599584
Volume
53
Publication Date
1986
Recommended Citation
Epstein, Richard A., "Was New York Times v. Sullivan Wrong?" (1986). Faculty Articles. 294.
https://gretchen.law.nyu.edu/fac-articles/294
