Congress could have shielded Roe; now it must act to protect free speech

Skip to content

The views expressed by contributors are their own and not the view of The Hill

There is a wisp of smoke on the constitutional horizon, and we’d better pay attention before it turns into a wildfire that consumes one of the pillars of free speech and a free press in America.

Supreme Court Justices Clarence Thomas and Neil Gorsuch have been giving the 1964 decision in New York Times v. Sullivan — which requires a showing of actual malice before a public figure can win a defamation case — the side-eye for years. Thomas, in particular, believes that the holding strays from the Constitution’s initial intent and should be overruled. This came up yet again last week, when the court refused to hear a case brought by Alan Dershowitz seeking to overturn the Sullivan decision.

Thomas and Gorsuch think Sullivan was wrongly decided because the founders did not believe that the free speech protections it provides were necessary, and that they bear “no relation to the text, history, or structure of the Constitution.”

In fact, the justices go even further. In their view, the founders believed that public figures should get extra protection from the slings and arrows of outrageous public commentary. “Instead,” they wrote, “the founding generation believed that, if anything, public figures had stronger claims for damages when they were defamed.”

Wow.

I am a firm believer in originalism because it provides a way to anchor legal analysis to something other than one’s own desires and prejudices. Having said that, an anchor can drag you straight to the bottom if you’re not careful. Originalism ceases to be useful if it becomes a sterile exercise in determining how people viewed the world in 1787.

Whipping and mutilation were widely practiced in the 18th century. Thomas Jefferson himself once drafted a bill that would have provided for “an eye for an eye” punishment when someone was seriously injured in an assault, and for castration in cases of sodomy, rape and polygamy. The bill was a serious reform and failed to pass by a single vote, because it was viewed as too lenient.

Clearly, applying historical tradition when interpreting the Constitution has to be more than a rote exercise.

So it is with the First Amendment and defamation law. Whatever threats defamation cases might have posed to the First Amendment in the 18th century, the landscape is now completely different. The Founding Fathers had no conception of the unprecedented reach and complexity of modern mass media and the internet. Things like strategic lawsuits against public participation and the prospect of billionaire presidents attempting to sue their critics into ruination and silence were utterly alien to them.

But they certainly did not have in mind to let the rich and the powerful to insulate themselves from criticism by leveraging the courts.

Although New York Times v. Sullivan was a unanimous decision, today it would be, at best, a 7-2 decision. And since overturning Sullivan is a long-term goal for many MAGA conservatives, this is likely to get worse.

There is a lesson here, of all things, in the fight over Roe v. Wade. The Republican Party was gunning for Roe before the ink on the opinion dried. Yet Democrats, despite decades of advance warning, did nothing to protect it. Now, Thomas and Gorsuch want to do much the same thing Dobbs did by overruling Sullivan. They want to eliminate federal curbs on defamation suits and let states determine what free speech rights people have.

Had they really wanted to protect Roe, what the Democrats should have done is insulate its holding from review by enshrining the rights it granted in a federal statute. For if the courts can decide a case based on a statute rather than the Constitution, they will. If Roe had been a federal law as well as a Supreme Court ruling, any court — including the Supreme Court — ruling on an abortion case would have first looked at the statute. If a state law being challenged violated the statute, and the court found that the statute fell within Congress’s very broad authority to pass laws, the question of Roe’s validity would never come up. Even if some subsequent Congress were to repeal this particular statute, the holding in Roe would still be the law of the land.

In other words, if Democrats had done this with Roe v. Wade when they had the chance, Dobbs would never have happened.

Something like this came up in the recent birthright citizenship case. Justice Brett Kavanaugh, not a fan of birthright citizenship, concurred in the judgment upholding it because Congress had incorporated the holding in 1898’s Wong Kim Ark into a federal statute.

Congress should do the same thing with New York Times v. Sullivan at the first available opportunity. Perhaps it could incorporate the actual malice defamation standard for public figures into a new and improved Free Speech Protection Act, a bipartisan proposal that would create a federal anti-SLAPP law.

A lot of the rights we take for granted are on much shakier ground than we care to realize. But constitutional rights, especially long-established ones, should not depend on the vagaries of politics and judicial appointment. It may be up to the Supreme Court to interpret the Bill of Rights, but nothing says Congress cannot protect it.

Chris Truax is a charter member of the Society for the Rule of Law and an appellate attorney.

Tags

Alan Dershowitz

Brett Kavanaugh

Clarence Thomas

Congress

Defamation

Dobbs v. Jackson

free speech

Neil Gorsuch

NY Times v. Sullivan

Roe v. Wade

Supreme Court

Thomas Jefferson

Copyright 2026 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.