This Article employs a comparative analysis of some important recent Commonwealth libel cases to analyze what has gone wrong with U.S. defamation law since New York Times v. Sullivan and to suggest a new direction for its reform. In Lange v. Australian Broadcasting Corporation, Lange v. Atkinson, and Reynolds v. Times Newspapers, the highest courts of the Australian, New Zealand, and English legal systems were confronted with the same challenge faced by the U.S. Supreme Court in New York Times v. Sullivan. They had to decide the proper constitutional balance between protection of reputation and protection of free expression in defamation actions brought by public officials over statements of fact. This Article's review of these Commonwealth decisions shows that none of them followed Sullivan by creating a new and freestanding constitutional defense like the "actual malice test." Instead, the Commonwealth Courts constitutionalized the common law of defamation by expanding the existing common law defense of qualified privilege for some types of political expression. U.S. scholars have largely ignored these Commonwealth cases, but a comparative look at them provides a new perspective on the Sullivan decision. This Article contends that the U.S. Supreme Court in Sullivan took a wrong turn by ignoring the existing defense of qualified privilege and its inherent flexibility arising from the public interest rationale. As a result, the Court unnecessarily created a new constitutional defense, when it could have more simply held that the First Amendment requires the expansion of the boundaries of state law qualified privilege. This wrong turn was compounded in later cases, which built a complex maze of rules, based on overly rigid categories of plaintiff for liability, damages, and procedure in libel actions. Serious problems have resulted for U.S. libel litigation, including excess complexity, jury confusion, inconsistency with Sullivan's stated Madisonian rationale, and widespread dissatisfaction with the current state of the law. The three Commonwealth cases offer three different versions of a more flexible common law alternative to the rigid categorical approach of Sullivan. Critics of U.S. defamation law should bear these alternatives in mind as models for reform.
Susanna Frederick Fischer, Rethinking Sullivan: New Approaches in Australia, New Zealand and England, 34 GEO. WASH. INT’L L. REV. 101 (2002).