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Current standard is not rooted in the Constitution, professor says

The current defamation standard set by the Supreme Court of the United States is too high, a political scientist with the Claremont Institute said on Tuesday.

Carson Holloway, who is also a political science professor at the University of Nebraska-Omaha, made the comments during a defamation roundtable hosted by Florida Governor Ron DeSantis.

“People have a right to their reputation,” Holloway said. The professor was joined by others who have been smeared by the media, including former Covington Catholic high schooler Nicholas Sandmann and a gun rights activist who had his comments unfairly represented in a Katie Couric documentary.

The political scientist and historian said that the current jurisprudence is a departure from the traditional understanding of the First Amendment. It has led to a system that made it very difficult for a public figure to win libel lawsuits.

He said the 1964 New York Times v. Sullivan decision, which allowed publications to spread falsehoods about a “public official” as long as the target could not prove “actual malice,” should be reversed. The case concerned an Alabama police officer who was the target of an error-filled advertisement run by the NY Times which made false statements about his alleged suppression of civil rights protests.

He also argued during the roundtable that the Sullivan case injected “pernicious inequalities” into our law by treating some people differently than others.

“Reputation is a right as precious and as important as one’s property, one’s life, one’s liberty,” Holloway said.

Holloway made similar arguments in a paper for the Claremont Institute.

“The consequences of New York Times v. Sullivan have been baleful for our nation,” he wrote in his October 2022 essay. “The ruling has undermined self-government by giving the press immense power over the public mind.”

Gov. DeSantis Hosts Panel Discussion on Defamation https://t.co/UzFTcLjE6a

— Ron DeSantis (@GovRonDeSantis) February 7, 2023

“Today, a partisan press routinely attempts to shape political outcomes by using defamation to make some people and some positions odious to the public,” he wrote. “The more successful a leader on the Right becomes, the more likely that person is to be labeled a racist or a Nazi.”

“The original understanding instead held that libel—false, defamatory publication—is outside the freedom of the press and not protected by that venerable principle,” he wrote. “Accordingly, today’s Supreme Court should, at the earliest suitable opportunity, reverse New York Times v. Sullivan and return our nation to its traditional, and more wholesome and reasonable, standards of libel.”

Editor’s note: Carson Holloway is a former professor and graduate advisor of the author of this piece.

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IMAGE: Ron DeSantis/Twitter

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