Justice William J. Brennan’s opinion in New York Times Co. v. Sullivan is widely recognized for many reasons, including, as articulated by Professor Harry Kalven, that it put “the First Amendment right side up for the first time” by identifying its “central meaning.” That meaning is the constitutional protection of speech critical of government and its officials – speech vital in a self-governing democracy. Justice Brennan’s approach was derived, in part, from the writings of James Madison, to whom the justice refers generously throughout the opinion, and Alexander Meiklejohn, to whom Justice Brennan gave credit only after the fact. This article examines the philosophical lineage from Madison to Meiklejohn to Brennan, and does so through the lens of path dependence, a perspective that advocates that history matters. A critique of path dependence emerges.
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