Schafer and Kosseff on Protecting Free Speech in a Post-Sullivan World @MatthewSchafer @jkosseff @FCLJournal @FordhamLawNYC @NavalAcademy

Matthew Schafer, Fordham University School of Law, and Jeff Kosseff, United States Naval Academy, Cyber Science Department, are publishing Protecting Free Speech in a Post-Sullivan World in the Federal Communications Law Journal for 2022. Here is the abstract.

Until 1964, courts were free to penalize journalists, activists, and others for criticizing the most powerful figures in the United States. That changed with the Supreme Court’s opinion in New York Times v. Sullivan, which requires public officials suing for defamation to establish actual malice, a daunting hurdle. Over the next three decades, the Court expanded on Sullivan and built a framework that provides vital First Amendment protections for modern journalism, online commentary, and other criticism. Those safeguards face their greatest threats ever, as high-profile figures weaponize defamation lawsuits and two Supreme Court justices call on their colleagues to join them in reconsidering Sullivan. As the Supreme Court has recently demonstrated, it will not shy away from rethinking even the most vital and established constitutional protections. To prevent the damage to free speech caused by a sudden reversal of Sullivan, we propose the federal Freedom of Speech and Press Act, which codifies many of the protections of Sullivan and its progeny and preempts state defamation laws that do not satisfy certain minimum standards that preserve “uninhibited, robust, and wide-open” debate across the country.

Download the article from SSRN at the link.