The new originalist majority on the Supreme Court faces a problem: from their originalist viewpoint, many past opinions are ill-reasoned. Certainly, New York Times v. Sullivan is one of them. It thus may well be a candidate for overruling. Professor Holloway is to be congratulated for putting its reconsideration on the table.

　　That said, overruling Sullivan raises many difficult questions for an originalist. Indeed, it would be a perfect issue spotter for an exam in a course on originalist theory. Holloway may well be right to favor overruling, but a few steps need to be taken before pulling the trigger.

　　To begin, Holloway’s use of “activism” as a term warrants closer examination. Contemporary originalists avoid this term, which arose prominently during the Warren Court era, when conservatives argued that the Court was using the Constitution to strike down too many laws. Originalism today, however, focuses on adherence to the Constitution’s original meaning, regardless of whether that meaning results in upholding or invalidating a law. Sullivan illustrates this principle: its validity should hinge solely on the First Amendment’s original meaning, not on whether striking down a liberal law could be deemed “activist.” Some originalists, including myself, do contend that the Court should act with greater caution in striking down legislation than in upholding it. Even this view, however, sparks considerable debate about the standard of certainty that invalidating legislation under judicial review should demand. Thus, unless Holloway intends to engage with the originalist debate over judicial restraint, the term “activism” may obscure rather than clarify his critique of Sullivan.

　　Holloway’s discussion of the First Amendment as understood at the Founding provides many useful pieces of evidence to suggest that the freedom of speech did not restrict the operation of libel laws except to require a defense of truth. But it is not entirely clear from his essay what are the overarching principles by which he defines what is within the concept of freedom of speech and what is outside it. The closest he comes is to offer a distinction between liberty and license, untruthful libels being the latter. But I wonder if a slightly different analysis of untruthful libel might be reached if we root the question of libel and freedom speech not in the distinction between liberty and license but in the concept of property, which I believe is more strongly supported as the principle at stake.

　　James Madison, the primary architect of the Bill of Rights, famously framed freedom of speech as “property” in one’s opinions, underscoring its vulnerability to state interference. But as with all property, it is subject to certain restrictions when wielded to harm the rights of others. The common law’s property concepts, deeply infused with natural rights theory, provide guidance on what interests may justifiably limit free speech without devolving into arbitrary suppression. These venerable doctrines, shaped over centuries, offer assurance that such protections serve a legitimate purpose rather than an agenda to stifle expression.

　　Some interests safeguarded by common law are plainly compatible with speech restrictions: real and personal property have long been shielded against private violence and deception, both by common law and statute. Reputation, closely tied to these other property interests, occupies a distinct place within the common law framework, akin to goodwill and the right of publicity. As Carson has himself nicely recognized elsewhere, given reputation’s longstanding place in this web of legal protections, it is implausible to argue that safeguarding it through libel laws was contrived to suppress speech. Rather, reputation is itself a kind of property worthy of legal protection no less than speech. Thus, libel laws against untruthful speech damaging to reputation, as a general principle, align with the concept of free speech.

　　The question becomes more complex, however, when libel concerns a public official’s reputation as a government actor, which is not so clearly a private interest. Unlike personal reputation, the standing of a public official in their public role may possess a quasi-public character, which suggests that is not as easily analogized to private property. This limiting rationale, though, does not extend to public figures, whose reputations, despite their public visibility, remain private property. Nor does it encompass libel related to the personal lives of public officials, which remains within the bounds of individual property rights. Under this view, Sullivan and its progeny would be defensible only as far as they narrow the protection for specific kinds of defamatory statements regarding the performance of public duties.

　　But the most significant gap in Holloway’s essay is his framing of libel restrictions under the First Amendment rather than the Fourteenth Amendment. Libel laws are state laws, and if the freedom of speech constrains them, it does so through the Fourteenth Amendment’s incorporation. Assuming, as most originalists do, that the Privileges or Immunities Clause of the Fourteenth Amendment applies the First Amendment to the states, this premise merely initiates an originalist inquiry. As Justice Amy Coney Barrett and others have observed, the rights encapsulated by the Bill of Rights in 1791 may not align precisely with those incorporated by the First Amendment in 1868.

　　The meanings of political and legal concepts can shift significantly over decades, and historical research shows that the legal understanding of constitutional provisions has indeed evolved. Michael Rappaport, for example, has argued persuasively that the Fifth Amendments Takings Clause did not originally apply to regulatory takings when the Bill of Rights was enacted, but by 1868, the concept had expanded to encompass such takings. Consequently, an originalist court might properly enforce regulatory takings against the states through the Fourteenth Amendment but refrain from applying this expanded interpretation to the federal government.

　　Deciding whether, to what extent, and how to overturn nonoriginalist precedents is a challenging task. It requires more than isolated judgments—it demands a robust originalist culture.

　　A similar analysis of free speech in this period remains largely unexplored, though there are reasons to suspect that the concept of free speech had expanded since 1789. By the mid-nineteenth century, political parties were more entrenched, and democratic institutions had matured, leading to a higher tolerance for political dissent. While seditious libel laws persisted, they were rarely enforced, and sharp public criticism of government officials became increasingly accepted. The antebellum period, however, also saw selective suppression, particularly regarding slavery and slave-owning officials. Opponents of slavery, the very advocates for the Fourteenth Amendment, invoked free speech in their struggle. Although my brief review has not uncovered principles robust enough to fully justify New York Times v. Sullivan, this era, rather than the Founding, may provide a more relevant baseline for understanding free speech as applied to the states.

　　A key question for any originalist approach to Sullivan also concerns the role of precedent. While some view originalism and precedent as fundamentally at odds, this is a misconception. As Michael Rappaport and I have argued, nothing in the Constitution prohibits judges from following precedent. First, the Constitution likely includes a minimal notion of precedent as an aspect of judicial power. Second, it treats precedent as a revisable form of federal common law, leaving the courts with substantial discretion—and ultimately Congress with oversight—over the rules of precedent.

　　With the constitutional permissibility of precedent established, the critical question becomes how best to integrate precedent into an originalist framework. In our view, the ideal precedent doctrine would instruct judges to adhere to precedent when doing so yields net benefits but to revert to original meaning when it does not. Original meaning offers distinct advantages because constitutional rules, having garnered supermajoritarian support, tend to embody sound principles. Nonetheless, precedent also provides stability, protecting the reliance interests upon which individuals and institutions have ordered their lives. Thus, a well-crafted precedent doctrine should seek to restore constitutional doctrine to its original meaning unless the reliance interests in a particular case outweigh the benefits of such a restoration.

　　Assuming New York Times v. Sullivan is indeed wrongly decided, the next question is whether it meets the criteria, consistent with originalist values, for overruling. Two types of reliance interests must be evaluated. The first pertains to the media, which has long operated under Sullivan’s protections. Media outlets have shaped their business models on the assumption that they can freely critique, and sometimes mischaracterize, public officials without facing libel claims absent proof of malice.

　　The second type of reliance is more diffuse, encompassing society’s broader expectation that the press will vigorously hold politicians to account. Given today’s vast and intricate government, combined with a landscape of entertainment that distracts voters, the news media’s freedom to pursue officials relentlessly—even when that pursuit involves occasional reckless errors—may be essential to political accountability. In the absence of Sullivan, alternative mechanisms for oversight might have evolved, such as more robust investigative agencies, but the transition could disrupt the reliability that citizens place on their ability to monitor elected leaders.

　　Assessing reliance interests in Sullivan’s core holding about public officials is challenging. However, this task could be simplified if the Court adopted the prospective overruling method that Michael Rappaport and I have proposed. Prospective overruling would enable the Court to declare a new rule without retroactively penalizing past conduct, allowing the media to adjust their practices without sudden liability risks. This approach would mitigate the immediate disruption for the press, enabling gradual adaptation to a new libel standard.

　　Moreover, prospective overruling would afford society time to develop alternative mechanisms for investigative oversight. To provide an even longer adjustment period, the Court could begin by narrowing Sullivan incrementally, such as by overruling Curtis Publishing Co. v. Butts, which extended Sullivan’s protections to public figures. Public reliance on monitoring public figures is less compelling, as fame does not equate to influence over public life. Such an incremental approach resembles the Court’s handling of prior First Amendment precedents, like its gradual rollback of protections for public sector union dues, culminating in outright reversal in Janus v. American Federation of State and County Workers. This Burkean strategy offers a glide path back to original meaning, avoiding shocks to individuals and political structures alike.

　　Deciding whether, to what extent, and how to overturn nonoriginalist precedents is a challenging task. It requires more than isolated judgments—it demands a robust originalist culture. Such a culture must foster a scholarly community committed to examining and debating these questions rigorously. It must also carry an attitude of humility, born from recognizing the many gaps in our understanding of the legal past. These gaps were often overlooked when nonoriginalism dominated the academy and bar. Holloway’s article provides a valuable contribution to this developing culture, offering a foundation upon which others may build.