Howard M. Wasserman (Florida International University (FIU) - College of Law) has posted A Jurisdictional Perspective on New York Times v. Sullivan: An Essay in Honor of Martin Redish (Northwestern University Law Review, Vol. 107, Issue 2, 2013) on SSRN. Here is the abstract:
New York Times v. Sullivan, arguably the Supreme Court's most significant First Amendment decision, marks its 50th anniversary in 2014. Often-overlooked in discussions of the case's impact on the freedom of speech 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-advocate co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case's outcome and the particular substantive First Amendment rules it established are a product of this jurisdictional and procedural background.
This article is a contribution to Northwestern Law Review's Festschrift in Honor of Martin H. Redish, a scholar who has produced a record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment. He also has been a sharp and unforgiving critic of many of the jurisdictional rules that kept this case out of federal court for so long. It is appropriate to recognize Redish's scholarly legacy by considering a landmark case at the intersection of his three scholarly pursuits that demonstrates why many of his arguments and criticisms are precisely correct.