New York has a rich history of safeguarding freedom of the press. As I sit in my chambers at our majestic First Department courthouse, located on the avenue named for the chief author of the First Amendment, I am reminded that James Madison called freedom of the press “one of the great bulwarks of liberty.”[1] One can only imagine what our fourth president would think of the frequent pronouncements demonizing the press as the “enemy of the American people,” much less the attacks on journalism and journalists that have been committed and countenanced in recent times. Reporters have been banned from the White House,[2] secretly monitored at the southern border and targeted for questioning,[3] even slaughtered by a foreign authoritarian regime with no presidential rebuke.[4] Meanwhile, there have been calls to “open up the libel laws” to make it easier for public figures to pursue and prevail in lawsuits over press coverage they dislike.[5] Indeed, in a recent concurring opinion, U.S. Supreme Court Justice Clarence Thomas proposed the elimination of the actual malice requirement in defamation cases. See generally McKee v. Cosby, 586 U.S. __ (2019) (Thomas, J., concurring).

In the face of these events, it is appropriate to reflect on the important role played by New York law and courts in preserving freedom of the press under our federalist system. Article I, §8 of the New York State Constitution, which guarantees the right of “[e]very citizen” to “freely speak, write and publish his or her sentiments on all subjects,”[6] provides protections that are broader than those afforded by the First Amendment. See O’Neill v. Oakgrove Constr., 71 N.Y.2d 521, 529 n.3 (1988); Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235, 249 (1991); People ex rel. Arcara v. Cloud Books, 68 N.Y.2d 553, 557-58 (1986). New York’s “Shield Law,” Civil Rights Law §79-h, further bolsters journalistic autonomy by giving journalists an absolute privilege against disclosure of their confidential sources and a strong qualified privilege against disclosure of non-confidential materials collected during news-gathering activities.[7] As the Court of Appeals has observed, “New York public policy as embodied in the Constitution and our current statutory scheme provides a mantle of protection for those who gather and report the news—and their confidential sources—that has been recognized as the strongest in the nation.” Matter of Holmes v. Winter, 22 N.Y.3d 300, 310 (2013). These foundational principles of New York law are of increasing importance in an environment that threatens to erode free-press protections at the federal level