Protecting the Best Men: An Interpretive History of the Law of Libel

By Norman L. Rosenberg | Go to book overview
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Chapter Eight
Legal Science and Hamiltonian Principles: Libel Law, 1880-1920

Although there was vigorous debate during the 1870s and 1880s over liberalization of political libel doctrines, the libertarian impulses, so evident in Cooley Constitutional Limitations and his Atkinson dissent, eventually met stiff resistance. Decisions such as the majority opinion in Negley v. Farrow-- which contained extravagant praise for free expression alongside legal rulings that were less libertarian than Cooley's doctrines--were as far as most courts were willing to go. By the end of the nineteenth century, in fact, the strongest current of legal opinion favored enshrinement of early nineteenth-century, neo-Blackstonian libel doctrines. Alexander Hamilton, not Thomas Cooley, became the leading late nineteenth-century oracle on libel law.

To begin to understand the forces that turned back the libertarianism of the mid-nineteenth century, we should return to the judicial career of Thomas Cooley. There was, as we have already seen, the libertarian Justice Cooley, the vigorous dissenter who insisted that the Michigan Supreme Court squarely face the free-speech issues he found lurking in cases such as Atkinson. But a full appraisal of the judicial record reveals another, more cautious Thomas Cooley. This Thomas Cooley's view on free speech, rather than the libertarian Cooley view in Constitutional Limitations and Atkinson, was closer to the positions that would prevail in most American courts. Only with the rather sudden reversal of libel doctrines in 1964, when the United States Supreme Court adopted its own version of Cooley's "qualified privilege" rule as a national constitutional standard, did the libertarian Cooley reemerge. But any attempt to draw a straight libertarian line from Cooley's treatises and Atkinson dissent to the libel decisions of the Warren Court must detour around the tangled history of defamation law in the late nineteenth and early twentieth centuries.


Mr. Justice Cooley Retreats

Thomas Cooley did not suddenly liberalize Michigan's libel laws. For a number of years, in fact, he had few chances to review any libel cases. During Cooley's first twelve years of judicial service, the Michigan Supreme Court heard only two libel appeals. More important, his colleagues, particu

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