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Times not for the opinions expressed in the ad but for the ad’s factual inaccuracies. This was a sham. The ad’s slight misstatements of fact were trivial. (For example, the ad had criticized state authorities for having suppressed peaceful civil rights protesters, but had mistakenly asserted that the protestors had sung “My Country Tis of Thee.” In fact, they had sung the national anthem.)
    In striking down Alabama’s gambit, the Times Court got the big issue of constitutional meaning absolutely right: The Constitution clearly entitles Americans to freely express their political opinions and to harshly criticize government servants in the process. The Sedition Act of 1798 had mocked this basic right, and Alabama’s libel law eerily echoed this old act, which had been long discredited in the court of American history and public opinion. Like Alabama libel law, the 1798 act had purported to target only “false” statements, but both laws had operated to stifle core expressions of political opinion. (Under both legal regimes, disparaging remarks were typically presumed false, malicious, and injurious—a series of galloping presumptions that threatened free political discourse.)
    Equipped with a sound understanding of the Constitution’s meaning, the Times Court proceeded to fashion a series of implementing rules to ensure robust political discourse. Although the Constitution does not value false assertions as such, some falsity needs to be protected as a practical matter. In Sullivan ’s words, truly free speech needs “breathing space.” Without this space, citizens might hesitate to speak, chilled by the prospect of punishment or liability for innocent mistakes of fact that invariably pepper public discourse in a well-functioning democracy—a prospect exemplified by the facts of Sullivan itself and by America’s earlier experience under the Sedition Act.
    Thus, Sullivan held that no libel judgment could issue unless a publisher had acted with “actual malice” by having knowingly propagated a falsehood—having flat-out lied—or by having displayed a reckless disregard for the actual truth of the matter. Plaintiffs would need to show this “actual malice” by evidence possessing a “convincing clarity,” and the Sullivan Court suggested that judges would keep juries on an especially tight leash to ensure that the evidence at trial met this heightened standard. Also, no plaintiff could prevail without evidence that he was the specific target of the libel. (In Sullivan , the ad had not named any Alabama official in particular, but had sweepingly condemned the oppressive state power structure in general.) These rules would apply to all libel suits brought by “a public official against critics of his official conduct.” Later cases expanded Sullivan to encompass all “public figures,” a category that at its core included all notable public servants and presumably all public office seekers, and that swept in other persons insofar as their activities were matters of legitimate public concern and commentary. 7
    Almost none of these specific sub-rules could be found in or logically deduced from the written Constitution. These were not rules of constitutional meaning; they were sub-rules of constitutional implementation. As an ensemble, they formed one sensible way, albeit not the only imaginable way, of ensuring that freedom of expression would actually prevail in court and on the ground. As such, this cluster of doctrinal rules fell squarely within the proper “judicial Power” of the Supreme Court.
    Precisely because several of Sullivan’ s doctrinal sub-rules were merely implementational, other branches of government may today properlypropose alternative structures that might be equally effective or even more effective in protecting free expression overall, though less protective in certain implementational details. Imagine, for example, a congressional statute that tightly caps punitive damages