Free Speech, Breathing Space, and Liability Insurance

*David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law. Thanks to Rachel Bayefsky, Vincent Blasi, Joshua Fischman, Leslie Kendrick, the late Frederick Schauer, Daniel Schwarcz, G. Edward White, and participants in a workshop at the University of Virginia School of Law for helpful comments, and to Hannah Irving for research assistance.Show More

An important piece of the “speech-tort” picture has been almost completely missing from doctrinal and policy analysis: the role played by liability insurance in protecting speech. In New York Times Co. v. Sullivan, the Supreme Court began adopting First Amendment restrictions on liability for defamation and the other speech torts—false light, intentional infliction of emotional distress, and public disclosure of private information. The Court’s purpose was to create “breathing space” for valuable speech by precluding liability for some speech that has no constitutional value in itself.

However, there is a little-known but highly important liability insurance regime that also affords breathing space, more broadly than the constitutional rules, by insuring against liability for unprotected speech and the costs of defending virtually all speech-tort suits, regardless of their validity. There have been decades of extensive legal scholarship about the First Amendment’s restrictions on speech-tort liability. Yet this scholarship has largely ignored the fact that all the liability for the speech torts that the First Amendment does permit can be, and often is, covered by liability insurance. In addition, Supreme Court Justices Thomas and Gorsuch recently have separately criticized existing constitutional limitations on liability for defamation as too broad without any mention of the widespread existence and availability of insurance protecting against liability for defamation. The Justices’ criticisms of defamation law have garnered a lot of attention and a barrage of responses, which have also omitted any reference to the possible relevance and significance of liability insurance to the debate about the proper scope of liability for defamation.

This Article takes insurance against speech-tort liability out of the shadows, bringing First Amendment theory and doctrine into the orbit of thinking about liability insurance and its operation in practice. The Article identifies and analyzes the sources and scope of the coverage that insurance provides against speech-tort liability, combining insights about the complex and intertwined consequences of the threat of speech-tort liability with what we know about how liability insurance both creates breathing space and attempts to mitigate excess risk-taking by those who are insured. The Article argues that, whether the end result is to change the law or simply to provide a firmer and more knowledgeable foundation for maintaining the law as it now stands, proponents of reform should either invoke the availability of liability insurance in support of their position or explain why their analyses ignore it. And opponents of reform should explain why they maintain their support of the status quo in spite of the availability of liability insurance. Finally, the Article considers the relevance of liability insurance to different theories of tort liability and analyzes the principal possible alternative to the current constitutional limits on liability, a negligence standard, concluding that such a standard would have considerable deficiencies.

Introduction

The proper scope of liability for defamation—impugning the reputation of an individual or organization—has become a salient public issue. The First Amendment provides considerable protection against liability for defamation (and certain other speech-related torts)¹ 1.As I explain below, these torts are false light, intentional infliction of emotional distress (“IIED”), and public disclosure of private facts. See infra Section II.A.Show More in order to provide “breathing space”² 2.See infra Section II.B.Show More—an extra margin of protection designed to ensure that free speech is not unduly deterred by the threat of liability.³ 3.See Leslie Kendrick, Speech, Intent, and the Chilling Effect, 54 Wm. & Mary L.Rev. 1633, 1636–37 (2013) (explaining that protecting negligent false statements from liability provides constitutional “breathing space”); Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the “Chilling Effect,” 58 B.U. L. Rev. 685, 710–18 (1978) (describing the role of a constitutional “buffer zone” in minimizing the chilling of protected activities).Show More Regardless of these protections, there are still suits for defamation, brought not only by private individuals, but also by, and against, public officials and public figures.⁴ 4.See, e.g., US Dominion, Inc. v. Fox News Network, LLC, 293 A.3d 1002 (Del. Super. Ct. 2023) (voting machine manufacturer against a television broadcaster based on conduct of various news anchors). The parties later reached a settlement for $787.5 million. David Folkenflik & Mary Yang, Fox News Settles Blockbuster Defamation Lawsuit with Dominion Voting Systems, NPR (Apr. 18, 2023, 4:35 PM), https://www.npr.org/2023/04/18/117033911‌4/fox-news-settles-blockbuster-defamation-lawsuit-with-dominion-voting-systems [https://p‌erma.cc/DTD5-TLCE]. See generally Freeman v. Giuliani, 691 F. Supp. 3d 32 (D.D.C. 2023) (election workers against a media personality), judgment entered, No. 21-cv-03354, 2023 WL 9783148 (D.D.C. Dec. 18, 2023), appeal dismissed, No. 24-7021, 2025 WL 634800 (D.C. Cir. Feb. 26, 2025); Carroll v. Trump (Carroll I), No. 20-cv-07311, 2024 WL 97359 (S.D.N.Y. Jan. 9, 2024) (writer against Donald Trump); Carroll v. Trump (Carroll II), No. 22-cv-10016, 2023 WL 3000562 (S.D.N.Y. Mar. 20, 2023) (same); Depp v. Heard, No. CL-2019-0002911, 2022 WL 2342058 (Va. Cir. June 24, 2022) (actor against another actor).Show More These suits receive high-profile attention. Such suits often not only seek personal vindication and compensation for reputational harm, but today, they also figure in the political process; they are moves in a larger set of thrusts and parries occurring outside the direct confines of tort litigation. But the law of defamation should be a law for all seasons, not one bent to suit transient political passions.

Into this picture have come two Justices of the Supreme Court. In judicial opinions, Justice Thomas and Justice Gorsuch have separately criticized existing constitutional limitations on liability for defamation as too broad, Justice Thomas on originalist grounds⁵ 5.McKee v. Cosby, 139 S. Ct. 675, 675–76 (2019) (Thomas, J., concurring in the denial of certiorari).Show More and Justice Gorsuch because of the quick and easy harm to reputation that can occur in the world of digital media.⁶ 6.Berisha v. Lawson, 141 S. Ct. 2424, 2427–28 (2021) (Gorsuch, J., dissenting from the denial of certiorari).Show More Both Justices contend, in effect, that the Constitution should authorize more liability for defamation than it currently permits. In response, a number of established First Amendment scholars have defended existing precedent,⁷ 7.See, e.g., Matthew L. Schafer, In Defense: New York Times v. Sullivan, 82 La. L. Rev. 81, 96–97, 158–60 (2021) (critiquing Justice Thomas’s and Justice Gorsuch’s historical analyses and arguing that overturning Sullivan would have a chilling effect on the speech of news organizations); Lili Levi, Disinformation and the Defamation Renaissance: A Misleading Promise of “Truth,” 57 U. Rich. L. Rev. 1235, 1285–87 (2023) (arguing that Justice Thomas’s historical justification for dispensing with Sullivan is inadequate and that Justice Gorsuch’s concerns about disinformation online are narrow compared to the sweeping effects that reconsidering Sullivan could have on free speech); Matthew L. Schafer & Jeff Kosseff, Protecting Free Speech in a Post-Sullivan World, 75 Fed. Commc’ns L.J. 1, 35–36 (2022) (questioning Justice Thomas’s use of the “PizzaGate” conspiracy theory as an example in favor of loosening liability standards, noting that the theory was spread by anonymous posters on message boards, actors for whom there would likely be little effective legal consequence); Lyrissa Lidsky, Untangling Defamation Law: Guideposts for Reform, 88 Mo. L. Rev. 663, 676 (2023) (arguing that reconsidering Sullivan would likely not have a substantial effect on the disinformation Justice Gorsuch is most concerned with, which does not usually come from mainstream news organizations).Show More and one of the country’s leading organizations supporting media rights has issued a 196-page white paper seeking to demonstrate that reform of existing limits on liability is unnecessary and ill-advised.⁸ 8.See generally Media L. Res. Ctr., New York Times v. Sullivan: The Case for Preserving an Essential Precedent (2022) [hereinafter MLRC], https://medialaw.org/wp-content/uploads/20‌23/01/nytsullivanwhitepaper.pdf [https://perma.cc/B7L4-UH3T].Show More

The two Supreme Court Justices, as well as the First Amendment scholars and media-support organizations opposing them, however, are guilty of a significant analytical and practical omission. They have failed to recognize that the media, other kinds of organizations, and most individuals have, or can obtain,⁹ 9.It is probably the case that some small media organizations cannot easily obtain, or cannot easily afford, Media Liability insurance, although I have found no quantitative data confirming this. See, e.g., Christina Koningisor & Lyrissa Lidsky, First Amendment Disequilibrium, 110 Va. L. Rev. 1, 29–31 (2024) (discussing the financial pressures that media organizations face); Elise Czajkowski, Why Media Liability Insurance Is Key to Making Sure Your Newsroom Continues to Exist, Inst. for Nonprofit News, https://inn.org/research/case-studies/why-media‌-liability-insurance-is-key-to-making-sure-your-newsroom-continues-to-exist/ [https://perma‌.cc/5D47-K9Z9] (last visited Apr. 3, 2025) (recounting difficulties and costs small media organizations face in connection with defamation suits and insurance).Show More insurance against liability for defamation and other speech-related torts.¹⁰ 10.The MLRC white paper does include a half-sentence reference to “rising libel insurance rates.” Richard Tofel & Jeremy Kutner, A Response to Justice Gorsuch, in MLRC, supra note 8, at 79, 83.Show More Alongside the constitutional regime affording breathing space for the exercise of protected free-speech rights, then, there is a little-known liability insurance regime that also affords breathing space for speech and provides broader protection than what the Constitution provides. It does so by indemnifying speakers against liability not only for harm caused by unprotected speech but also for the cost of defending against suits alleging liability for speech that turns out to have been protected or not to have been tortious.¹¹ 11.See infra Section II.A.Show More That is, liability insurance provides protection against liability that the First Amendment permits, as well as the cost of defending against alleged liability. It also supplements the protection the Constitution provides by covering the legal costs that speakers would otherwise incur when they are sued and the speakers win.

What if you analyzed the impact of tort liability on the quality of medical care without taking into account the fact that health care providers typically are protected against liability by malpractice insurance?¹² 12.For work that addresses this issue, see generally Tom Baker, The Medical Malpractice Myth (2005); Frank A. Sloan, Randall R. Bovbjerg & Penny B. Githens, Insuring Medical Malpractice (1991); Paul C. Weiler et al., A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation (1993).Show More What if you analyzed how the threat of liability for causing an automobile accident affects driving behavior without ever considering that liability insurance pays for virtually all individuals’ automobile liability?¹³ 13.See Kenneth S. Abraham, The Liability Century: Insurance and Tort Law from the Progressive Era to 9/11, at 102–03 (2008) (illustrating how the ubiquity of automobile insurance has slowed automobile liability reform);Tom Baker, Liability Insurance as Tort Regulation: Six Ways That Liability Insurance Shapes Tort Law in Action,12 Conn. Ins. L.J. 1, 11–12 (2005) (explaining the role of liability insurance in shaping tort doctrine); Nora Freeman Engstrom,Sunlight and Settlement Mills, 86 N.Y.U. L. Rev. 805, 815–16 (2011) (discussing how no-fault liability insurance could reshape tort law).Show More You would properly be thought to have ignored an important ingredient of any sensible analysis.¹⁴ 14.See Kenneth S. Abraham & Catherine M. Sharkey, The Glaring Gap in Tort Theory, 133 Yale L.J. 2165, 2169 (2024).Show More

Yet the constitutional theory of breathing space takes no account of the role that insurance against liability for defamation and other speech-related torts plays in the operation of free speech in theory and in practice. In fact, there have been decades of extensive legal scholarship and constitutional litigation about the First Amendment’s restrictions on speech-tort liability. Most of this scholarship, and the courts, have wholly ignored the fact that all of the liability for the speech torts that the First Amendment does permit can be and often is covered by liability insurance.¹⁵ 15.There have been at most a few dozen passing references to libel insurance in the law review literature over the decades, but almost no actual discussion of its significance. It would take too much detail to systematically prove this negative. A glance at two of the major First Amendment law casebooks, however, provides some confirmation. There is nothing in the table of contents or the index of either that refers to “insurance” or “liability insurance,” and nothing in the text of either that I can find that mentions these subjects. See generally Noah R. Feldman & Kathleen M. Sullivan, First Amendment Law (8th ed. 2023); Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet & Pamela S. Karlan, The First Amendment (4th ed. 2012). I have been able to find only two brief but actual discussions of defamation liability insurance in the law review literature, the most recent of them more than thirty years old. See Frederick Schauer, Uncoupling Free Speech, 92 Colum. L. Rev. 1321, 1339–43 (1992); Marc A. Franklin, Good Names and Bad Law: A Critique of Libel Law and a Proposal, 18 U.S.F. L. Rev. 1, 18–22 (1983). And roughly thirty-five years ago, part of one chapter in a book of essays made reference to and analyzed “trends in insurance premiums.” See Henry R. Kaufman, Trends in Damage Awards, Insurance Premiums, and the Cost of Media Libel Litigation, in The Cost of Libel: Economic and Policy Implications 1, 11–15 (Everette E. Dennis & Eli M. Noam eds., 1989).Show More As we will see below, how this all takes place is not an entirely simple matter, but it is not rocket science either. Courts and commentators should be able to understand it. In any event, its technicality and complexity are not a justification for ignoring it.

Whether the existing constitutional limits on liability for defamation and the other speech torts should be maintained is a multilayered issue that I do not claim, or even aim, to definitively resolve here.¹⁶ 16.For a recent argument that the protections provided to public figures should be reduced, see generally G. Edward White, Reconsidering the Legacy of New York Times v. Sullivan, 23 First Amend. L. Rev. 1 (2024).Show More The principal purpose of this Article is to give analysts and policymakers more sophisticated tools to employ in addressing that issue, though I also make some points regarding the difficulties that would be encountered if liability based on negligence were permitted across the board. My contention is not that the newly realized availability of liability insurance should necessarily make a difference in speech-tort law at the retail level, doctrine by doctrine. Rather, I contend that the invocation of breathing-space concerns in constitutional law, in common law adjudication, and in public debate should be influenced by the recognition that not only constitutional protections against liability, but also liability insurance, provide breathing space for speech.

My message, then, is that those who subscribe to Justice Gorsuch’s position that proving actual malice, in practice, is too high a hurdle for defamation plaintiffs to overcome should either be invoking the availability of liability insurance in favor of their position or explaining why they are not doing so. And those who oppose that position and favor maintaining current First Amendment protections against liability should be explaining why they take this position, notwithstanding the breathing space that liability insurance provides.

In short, in light of the findings about liability insurance that I set out below, it seems clear that any analysis of First Amendment or tort liability issues that turns at least in part on breathing-space concerns should take the operation of liability insurance into account. I show how that can be done. Although liability insurance does not provide blanket protection, it is still a source of substantial breathing space. In addition, I explain why, at this point, we could use a much more complete understanding of the quantitative side of the issues that are relevant to the kind of analysis I am proposing. But we should not wait for perfect information about the incidence of insurance protection against speech-tort liability before taking the availability of this insurance into account. We should go with what data we have now. That is what I do here.

Part I identifies and analyzes the sources and scope of the coverage that insurance provides against speech-tort liability. Such insurance may be known to exist by a few judges and First Amendment scholars, but based on my own informal surveys, the availability, scope, and distribution of such insurance are only dimly understood at most. Perhaps even more surprising, insurance law scholars themselves (again, based on my own informal surveys) also have little awareness or understanding of the scope of speech-tort liability insurance. It is little wonder that there has been no scholarship integrating the two fields; the subject is largely opaque to most scholars in both.

Part II briefly identifies the elements of the traditional common law rules governing four speech torts—defamation, the main such tort, as well as false light, intentional infliction of emotional distress (“IIED”), and public disclosure of private facts—and also examines the particular restrictions on the scope of these liabilities that the Supreme Court has ruled apply to them as a matter of First Amendment law. The focus of this Part is not only the two sets of liability rules, but also what we know (and do not know) about suits and outcomes in speech-tort litigation, for most suits do not go all the way to verdict and judgment. This Part delineates the forms of speech-tort liability that are now precluded and those that remain constitutionally valid, which is an important step in the analysis, because the distinction between the two categories marks the boundary between the domains of constitutional protection from speech-tort liability and potential liability insurance indemnity against speech-tort liability.

Part III constitutes an effort to intervene in the two fields by combining insights about the complex and intertwined consequences of the threat of speech-tort liability with what we know about how liability insurance both creates moral hazard and attempts to neutralize it. This Part thereby identifies for the first time the critical issues for the integrated field. The results can be considered a benchmark in the development of an integrated theory of the relation between free speech, breathing space, and liability insurance. It also provides a sharpened understanding of the manner in which these fields operate together in practice.

Finally, now that liability insurance has come out of the shadows, Part IV first considers the normative relevance of liability insurance to analysis of the speech torts. This Part argues that, regardless of the other debates in torts scholarship about “rights theory” versus consequentialism, in the field of speech torts, the consequentialist conception must prevail. This is because ensuring breathing space for speech is the most consequentialist of purposes. Second, this Part takes a look at what standard could then replace actual malice. It turns out that the alternatives—especially a negligence standard—have significant disadvantages. This insight suggests that evaluating the full mix of considerations relevant to the issue, including the availability of liability insurance, does not lead to a definitive conclusion, but only to a more sophisticated analysis of the advantages and disadvantages of the approach that has now been in place for over fifty years.

1.  As I explain below, these torts are false light, intentional infliction of emotional distress (“IIED”), and public disclosure of private facts. See infra Section II.A. ↑
2.  See infra Section II.B. ↑
3.  See Leslie Kendrick, Speech, Intent, and the Chilling Effect, 54 Wm. & Mary L.
   

   Rev. 1633, 1636–37 (2013) (explaining that protecting negligent false statements from liability provides constitutional “breathing space”); Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the “Chilling Effect,” 58 B.U. L. Rev. 685, 710–18 (1978) (describing the role of a constitutional “buffer zone” in minimizing the chilling of protected activities). ↑

4.  See, e.g., US Dominion, Inc. v. Fox News Network, LLC, 293 A.3d 1002 (Del. Super. Ct. 2023) (voting machine manufacturer against a television broadcaster based on conduct of various news anchors). The parties later reached a settlement for $787.5 million. David Folkenflik & Mary Yang, Fox News Settles Blockbuster Defamation Lawsuit with Dominion Voting Systems, NPR (Apr. 18, 2023, 4:35 PM), https://www.npr.org/2023/04/18/117033911‌4/fox-news-settles-blockbuster-defamation-lawsuit-with-dominion-voting-systems [https://p‌erma.cc/DTD5-TLCE]. See generally Freeman v. Giuliani, 691 F. Supp. 3d 32 (D.D.C. 2023) (election workers against a media personality), judgment entered, No. 21-cv-03354, 2023 WL 9783148 (D.D.C. Dec. 18, 2023), appeal dismissed, No. 24-7021, 2025 WL 634800 (D.C. Cir. Feb. 26, 2025); Carroll v. Trump (Carroll I), No. 20-cv-07311, 2024 WL 97359 (S.D.N.Y. Jan. 9, 2024) (writer against Donald Trump); Carroll v. Trump (Carroll II), No. 22-cv-10016, 2023 WL 3000562 (S.D.N.Y. Mar. 20, 2023) (same); Depp v. Heard, No. CL-2019-0002911, 2022 WL 2342058 (Va. Cir. June 24, 2022) (actor against another actor). ↑
5.  McKee v. Cosby, 139 S. Ct. 675, 675–76 (2019) (Thomas, J., concurring in the denial of certiorari). ↑
6.  Berisha v. Lawson, 141 S. Ct. 2424, 2427–28 (2021) (Gorsuch, J., dissenting from the denial of certiorari). ↑
7.  See, e.g., Matthew L. Schafer, In Defense: New York Times v. Sullivan, 82 La. L. Rev. 81, 96–97, 158–60 (2021) (critiquing Justice Thomas’s and Justice Gorsuch’s historical analyses and arguing that overturning Sullivan would have a chilling effect on the speech of news organizations); Lili Levi, Disinformation and the Defamation Renaissance: A Misleading Promise of “Truth,” 57 U. Rich. L. Rev. 1235, 1285–87 (2023) (arguing that Justice Thomas’s historical justification for dispensing with Sullivan is inadequate and that Justice Gorsuch’s concerns about disinformation online are narrow compared to the sweeping effects that reconsidering Sullivan could have on free speech); Matthew L. Schafer & Jeff Kosseff, Protecting Free Speech in a Post-Sullivan World, 75 Fed. Commc’ns L.J. 1, 35–36 (2022) (questioning Justice Thomas’s use of the “PizzaGate” conspiracy theory as an example in favor of loosening liability standards, noting that the theory was spread by anonymous posters on message boards, actors for whom there would likely be little effective legal consequence); Lyrissa Lidsky, Untangling Defamation Law: Guideposts for Reform, 88 Mo. L. Rev. 663, 676 (2023) (arguing that reconsidering Sullivan would likely not have a substantial effect on the disinformation Justice Gorsuch is most concerned with, which does not usually come from mainstream news organizations). ↑
8.  See generally Media L. Res. Ctr., New York Times v. Sullivan: The Case for Preserving an Essential Precedent (2022) [hereinafter MLRC], https://medialaw.org/wp-content/uploads/20‌23/01/nytsullivanwhitepaper.pdf [https://perma.cc/B7L4-UH3T]. ↑
9.  It is probably the case that some small media organizations cannot easily obtain, or cannot easily afford, Media Liability insurance, although I have found no quantitative data confirming this. See, e.g., Christina Koningisor & Lyrissa Lidsky, First Amendment Disequilibrium, 110 Va. L. Rev. 1, 29–31 (2024) (discussing the financial pressures that media organizations face); Elise Czajkowski, Why Media Liability Insurance Is Key to Making Sure Your Newsroom Continues to Exist, Inst. for Nonprofit News, https://inn.org/research/case-studies/why-media‌-liability-insurance-is-key-to-making-sure-your-newsroom-continues-to-exist/ [https://perma‌.cc/5D47-K9Z9] (last visited Apr. 3, 2025) (recounting difficulties and costs small media organizations face in connection with defamation suits and insurance). ↑
10.  The MLRC white paper does include a half-sentence reference to “rising libel insurance rates.” Richard Tofel & Jeremy Kutner, A Response to Justice Gorsuch, in MLRC, supra note 8, at 79, 83. ↑
11.  See infra Section II.A. ↑
12.  For work that addresses this issue, see generally Tom Baker, The Medical Malpractice Myth (2005); Frank A. Sloan, Randall R. Bovbjerg & Penny B. Githens, Insuring Medical Malpractice (1991); Paul C. Weiler et al., A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation (1993). ↑
13.  See Kenneth S. Abraham, The Liability Century: Insurance and Tort Law from the Progressive Era to 9/11, at 102–03 (2008) (illustrating how the ubiquity of automobile insurance has slowed automobile liability reform); Tom Baker, Liability Insurance as Tort Regulation: Six Ways That Liability Insurance Shapes Tort Law in Action, 12 Conn. Ins. L.J. 1, 11–12 (2005) (explaining the role of liability insurance in shaping tort doctrine); Nora Freeman Engstrom, Sunlight and Settlement Mills, 86 N.Y.U. L. Rev. 805, 815–16 (2011) (discussing how no-fault liability insurance could reshape tort law). ↑
14.  See Kenneth S. Abraham & Catherine M. Sharkey, The Glaring Gap in Tort Theory, 133 Yale L.J. 2165, 2169 (2024). ↑
15.  There have been at most a few dozen passing references to libel insurance in the law review literature over the decades, but almost no actual discussion of its significance. It would take too much detail to systematically prove this negative. A glance at two of the major First Amendment law casebooks, however, provides some confirmation. There is nothing in the table of contents or the index of either that refers to “insurance” or “liability insurance,” and nothing in the text of either that I can find that mentions these subjects. See generally Noah R. Feldman & Kathleen M. Sullivan, First Amendment Law (8th ed. 2023); Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet & Pamela S. Karlan, The First Amendment (4th ed. 2012). I have been able to find only two brief but actual discussions of defamation liability insurance in the law review literature, the most recent of them more than thirty years old. See Frederick Schauer, Uncoupling Free Speech, 92 Colum. L. Rev. 1321, 1339–43 (1992); Marc A. Franklin, Good Names and Bad Law: A Critique of Libel Law and a Proposal, 18 U.S.F. L. Rev. 1, 18–22 (1983). And roughly thirty-five years ago, part of one chapter in a book of essays made reference to and analyzed “trends in insurance premiums.” See Henry R. Kaufman, Trends in Damage Awards, Insurance Premiums, and the Cost of Media Libel Litigation, in The Cost of Libel: Economic and Policy Implications 1, 11–15 (Everette E. Dennis & Eli M. Noam eds., 1989). ↑
16.  For a recent argument that the protections provided to public figures should be reduced, see generally G. Edward White, Reconsidering the Legacy of New York Times v. Sullivan, 23 First Amend. L. Rev. 1 (2024). ↑