This country marched towards freedom during the 1960's, not only through civil rights and anti-war protests but court decisions that breathed life into the Bill of Rights, which include the First Amendment. We don't hear about it much these days in everyday discussion, but things took a turn for the better on March 9, 1964, when the Supreme Court of the United States made it nearly impossible for public officials to sue citizens for public speech criticizing them by name.

In a nutshell, the Court in New York Times v. Sullivan ruled that, even if the critic gets his facts wrong in criticizing a governmental official, he cannot be sued by that official unless he spoke with malice. Negligently or mistakenly getting your facts wrong will not get you sued by a public official. Only malicious statements will. But malice is extremely difficult to prove, so for the most part, most government officials would not bother with any defamation lawsuit. Nothing would shut up even the biggest loudmouth if he thought he might get sued by a Congressman for provocative public speech.

New York Times v. Sullivan changed everything. Probably every blog and political commentator in the country owes a debt the Supreme Court for that ruling. If that's the case, send a check to the estate of the late Justice William Brennan, who wrote the opinion and stated that political debate in this country had to be robust for a democratic society to flourish. Here are Brennan's famous words on the subject: "We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." We have not always lived up to Brennan's counsel that free speech be fearless and robust, but it's an excellent value to strive for.

Supreme Court decisions have the force of law, and for the most part, Congress cannot overturn them. But the Supreme Court can overturn its prior rulings, as we hear ad nauseum every time another potential Court nominee is bombarded with questions about whether he'd overturn Roe v. Wade, which recognized a constitutional right to abortion. But would anyone ask a Supreme Court nominee whether she'd overturn New York Times v. Sullivan? I don't think the question has ever been asked.

In a little noticed comment in a book about government news sources, Justice Scalia -- a sitting Supreme Court Justice -- suggested that he would overturn New York Times v. Sullivan if given the opportunity. We know this thanks to the astute observations of Dahlia Lithwick of Slate.com, who writes:

on Page 77 of Norman Pearlstine's new book about anonymous sources, Off the Record. . . . Pearlstine lays out the long American tradition of the free press and then—smack in the middle of discussing the landmark libel ruling of New York Times Co. v. Sullivan—he tosses in quite a parenthetical. He notes that "(In an interview, Justice Antonin Scalia told me that given the chance, he would probably vote to reverse New York Times Co. v. Sullivan.)"

This should be big news, but it isn't. The loudest critics of American government probably never heard of New York Times v. Sullivan, even though it lets them say whatever they want without being sued for defamation.

So what is Justice Scalia's problem with New York Times v. Sullivan? He was quoted a few years ago saying that

"The press is the only business that is not held responsible for its negligence." Scalia also noted that he had great difficulty believing that public people should have such problems protecting their reputations.

The average public official does not have to worry about her reputation. The average citizen, in contrast, will think twice before criticizing your typical politician out of fear of being sued. Any negative reputational consequences that result from a few misguided statements about a public official are certainly outweighed by the social benefits of robust free speech. Why doesn't a Supreme Court Justice like Scalia recognize this? What if he gets his way and overturns New York Times v. Sullivan?