ABSTRACT-New York Times v. Sullivan, arguably the Supreme Court's most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case's impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil-rights-leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case's outcome and the particular First Amendment rules it established are a product of this jurisdictional and procedural background.
Martin H. Redish has produced a lengthy record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment, and has been a sharp and unforgiving critic of many of the jurisdictional rules that kept the case out of federal court for so long. It is appropriate to recognize Redish's scholarly legacy by examining this landmark case, which sits at the intersection of his three scholarly pursuits and demonstrates why many of his arguments and criticisms are precisely correct.
New York Times v. Sullivan,1 arguably the Supreme Court's most significant First Amendment case,2 marks its fiftieth anniversary next year. Sullivan took an area of law-state libel law-that had not previously been recognized as subject to federal constitutional constraint and moved it "from far out frozen darkness to the sunny warmth of the first amendment."3 The Court employed sweeping language about the importance of the freedom of speech; about the liberty of citizens and the press to criticize public officials in even the most caustic, vehement, and occasionally erroneous terms; and about the fundamental idea that speech on matters of public concern must be "uninhibited, robust, and wide-open."4 It also resolved a 160-year-old historical debate by declaring that seditious libel or anything like it is inconsistent with fundamental notions of free expression.5 These ideas launched the modern First Amendment and have informed free speech jurisprudence for half a century.6 No wonder the Court's unanimous decision was celebrated as "an occasion for dancing in the streets."7
Underlying the state law defamation action in which the Court made these pronouncements was a complex puzzle of federal jurisdiction and civil procedure. The speaker-defendants were unable to obtain a federal forum for their federal constitutional claims for four years, meaning they endured two layers of overwhelming and costly defeat in state court before finally getting to an Article III tribunal. Even then, they got to federal court only because the Justices, exercising unchecked discretion and to the surprise of many (including the lead media defendant), found the case worth hearing. This circuitous and uncertain route to federal court was dictated by jurisdictional and procedural rules-constitutional, statutory, and judge made-in effect at the time and still in effect today. The speech-protective outcome in Sullivan and the doctrine it spawned are a product of this jurisdictional and procedural background. At the same time, had things gone slightly differently, the case might never have reached the Supreme Court or any other federal forum, just as it remains conceivable that the next Sullivan might never do so. The substantive First Amendment consequences of that possibility are obvious and troubling.
This volume of the Northwestern University Law Review honors the work of Martin H. Redish, who in forty years in the academy has produced a record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment. This is the ideal forum to consider the extent to which the First Amendment's greatest judicial victory was awash in procedure and federal jurisdiction. …