2015] FREE SPEECH 503
Co. v. Sullivan was that private claims empowered by the state can undo free
expression.4 But the speech protected in the case that launched the modern
First Amendment5 cost $4800 in 1960.6 Indeed, in his argument to the Court,
Commissioner L.B. Sullivan ridiculed the Times’ claim to be promoting the
“equality of practical enjoyment of the benefits” of free speech and press.7
Justice Brennan, writing for the Court, could only argue that “‘editorial
advertisements’ of this type” at issue in the case allowed “persons who do not
themselves have access to publishing facilities . . . to exercise their freedom of
speech even though they are not members of the press.”8 Still, by turning the
First Amendment’s gaze from direct state regulation of speech to private law,
Sullivan helped usher in an era when speech, powered by the Internet, would
in fact become free—in both senses of the term. Free as in speech, and free as in
First Amendment was thought not to prohibit or limit state tort laws that allowed private actions
for damages related to injuries caused by negligent publications.” (footnote omitted)).
4. Sullivan is often heralded for introducing the requirement of malice for any case of libel
against a public official, but its more fundamental innovation was to render private law within the
disciplinary domain of the First Amendment’s free speech and free press clause. N.Y. Times Co.
v. Sullivan, 376 U.S. 254, 291–92 (1964). Such an approach was so new that the Alabama
Supreme Court could have dispatched the New York Times’ constitutional arguments earlier in the
case in merely two sentences—the first stating that the First Amendment did not apply to state
libel, and the second that there was no state action in a private tort claim. See N.Y. Times Co. v.
Sullivan, 144 So. 2d 25, 40 (Ala. 1962).
5. Sullivan has been widely extolled (though largely on other grounds). See Harry Kalven,
Jr., The New York Times Case: A Note on “The Central Meaning of the First Amendment,” 1964 SUP. CT.
REV. 191, 208–10 (explaining that the case defined the “central meaning” of the First
Amendment); id. at 221 n.125 (quoting Alexan der Meiklejohn’s statement in response to the
Sullivan decision: “an oc casion for dancing in the streets”); see also L
EE C. BOLLINGER,
UNINHIBITED, ROBUST, AND WIDE-OPEN: A FREE PRESS FOR A NEW CENTURY 14 (2010) (calling
Sullivan “[o]ne of the most important First Amendment decisions in the twentieth century, and
perhaps of all time”); Floyd Abrams, In Memoriam: William J. Brennan, Jr., 111 HARV. L. REV. 18,
21 (1997) (noting Sullivan “is the quintessential First Amendment ruling in our history”);
Richard A. Epstein, Was New York Times v. Sullivan Wrong?, 53 U. CHI. L. REV. 782, 782 (1986)
(calling Sullivan an “epochal case”).
6. Sullivan, 376 U.S. at 260 (noting that a full page advertisement cost $4800). A similar
advertisement today runs between approximately $67,000 and $241,000. N.Y. TIMES, 2014
BUSINESS ADVERTISING RATES 4 (2014), available at http://nytmediakit.com/uploads/rates/14-
0208_2014_Business_RateC_AW5.pdf; see also Jen Chung, Full-Page NY Times Ad with A.O. Scott’s
Tweet Cost $70,000, GOTHAMIST (Jan. 6, 2014, 5:30 PM), http://gothamist.com/2014/01/06/
7. Brief for Respondent at 31, Sullivan, 376 U.S. 254 (No. 39), 1963 WL 105892, at *31.
“The Times charged the regular commercial advertising rate of almost five thousand dollars,
scarcely as ‘an important method of promoting some equality of practical enjoyment of the
benefits the First Amendment was intended to secure.’” Id.
8. Sullivan, 376 U.S. at 266.
9. This turns on its head Richard Stallman’s famous aphorism about open source
software—free as in speech, not free as in beer. Jonathan Zittrain, Normative Principles for
Evaluating Free and Proprietary Software, 71 U. CHI. L. REV. 265, 271 (2004) (discussing Stallman’s
description of “free software”).