Law360

It was over 32 years ago that we graduated from the University of Chicago Law School. The three years in Hyde Park were a punishing experience. There was one class in particular when Prof. Richard Epstein used the Socratic method to pummel our intellect and ego. By the end of the exercise, we were a puddle of incoherence.

Authors: Stephen J. McConnell

The class was called Advanced Torts. It is a bit funny that we today practice a form of Advanced Torts, even though Prof. Epstein long ago exposed our idiocy in the field. But all is forgiven, if not quite forgotten, and we are grudgingly grateful for the hard lessons learned at his feet (from his vigorous kicking away at our preconceptions).

One of the things that Epstein did in that class was rip into the New York Times v. Sullivan decision. That case is usually thought of as one of the crown jewels of First Amendment jurisprudence, as it furnishes almost absolute protection to the press. Basically, newspapers and other press media can skate past libel liability, no matter how false their publications, unless the press published with “actual malice” — knowing the statement was false or acting in reckless disregard.

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