It’s rather strange that such a heated debate is raging over the 'actual malice” standard. These words, now a lodestar of constitutional law, almost didn’t make it into [New York Times v.] Sullivan at all. None of the litigants in that case argued for such a rule, nor was there much debate about it during oral argument. Justice William Brennan, who wrote the opinion in the case, claimed that his clerks came up with it in chambers. Perhaps unsurprisingly for a rule fashioned on the fly, there really is much to criticize about it....
Lakier puts a link on "clerks," and it goes to a law review article that says, "In later years, Justice Brennan would recall that his clerks discovered the opinion’s 'actual malice' language, but in fact, it was contained in Herbert Wechsler’s brief." Wechsler argued the case for the New York Times.
Lakier's conclusion calls the "actual malice" standard "an accident of
history":
The rule is an icon of American constitutional law and unique in the common-law world. It’s an emblem of American free-speech exceptionalism and a source of pride. But it’s also, to some extent, an accident of history. We need not let Sullivan limit our imagination of how First Amendment law could better serve the public interest in a vastly different media environment from the one in which the decision was handed down.
As a writer in this "vastly different media environment," I think New York Times v. Sullivan is more valuable than ever. Go ahead ahead and exercise your "imagination" over how First Amendment law could "better serve" your idea of "the public interest," but the Supreme Court needs to keep the iconic precedent that we have relied on for so long.
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