The Federalization of Libel by Two Supreme Courts

A study examined the quantity and quality of libel decisions of the Warren and Burger Supreme Courts to determine how changes in libel law came about, how individual justices voted on libel compared to other issues of freedom of expression, and how permanent constitutional libel rules will be as the more conservative Rehnquist Supreme Court takes over. All freedom of expression decisions were analyzed for the 16 years of the Warren Court, 1953-69, and the 17 years of the Burger Court, 1969-86. Data indicated that the Warren Court (1) did not become significantly involved in libel until the last six of its 16 years when it created the actual malice rule; (2) averaged two libel decisions per year; and (3) heard 16% of libel appeals. The Burger Court averaged 1.2 libel decisions per year and heard 6% of the libel cases appealed to it. During its last six years, the Warren Court was more of an activist court in the area of libel than the Burger Court. Findings also showed that libel defendants won 87% of the time under Warren, compared to 45% under Burger. (Three tables of data and 56 notes are included.) (MS)