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Tennessee Law Review


Today, many institutional arrangements reached in the mid-twentieth century are being rethought and renegotiated. One such arrangement involves libel, and the responsibility of publishers for harm they cause via defamation. In his recent concurrence to the denial of certiorari in the case of McKee v. Cosby, Justice Clarence Thomas called for the Supreme Court to revisit the constitutional protections for publishers of libelous material, arguing that the existing arrangement, dating to New York Times Co. v.Sullivan and its progeny, is out of date and unsupported by the Constitution. As even some left-leaning scholars note, he may have a point, and it seems likely that the Supreme Court will revisit the issue of libel in the near future.

In this short Essay, I will discuss Thomas’s critique, the broader problem of fairly adjudicating libel cases in an era of widespread publishing and social media, and the impact of the Sullivan regime over the past half-century. I will then suggest some remedies to the problems identified — remedies that fall short of overturning Sullivan, but that would still represent a significant change in current law — and I will explain why the Supreme Court is more likely to follow such an approach than to overturn Sullivan outright.

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