North Carolina Law Review
In this article, the authors examine the development of libel law in America since the Supreme Court's watershed decision in New York Times Co. v. Sullivan and suggest that Sullivan affords members of the press less protection than many think. Sullivan's actual malice standard invites judges to create norms of acceptable journalistic conduct for news gathering, which members of the press and their lawyers use as maps to navigate around libel liability. The authors examine a large number of these judicial decisions and note the types of journalistic conduct at issue and what conduct the courts view positively. The authors also examine the modes of decision making that courts employ and suggest that judges may take a more restrictive approach in cases concerning research than in cases concerning writing and editing. The considerable leeway that judges have in deciding libel cases presents a serious threat to press freedom. The authors urge law reformers to abandon Sullivan's actual malice standard and adopt alternative forms of First Amendment protection.
Brian C. Murchison, Sullivan's Paradox: The Emergence of Judicial Standards of Journalism, 73 N.C.L. Rev. 7 (1994).