Thomas Wants to Undo Decades of Defamation Law

Thomas Wants to Undo Decades of Defamation Law February 22, 2019

There are few Supreme Court rulings as powerful as NY Times v Sullivan, the landmark ruling that made it extremely difficult to win a defamation suit, especially if the plaintiff is a public figure. Justice Clarence Thomas wants to overturn it completely and leave it up to the states to set whatever standards they’d like on th subject.

Justice Clarence Thomas on Tuesday called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment to make it hard for public officials to prevail in libel suits.

He said the decision had no basis in the Constitution as it was understood by the people who drafted and ratified it.

“New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote.

Justice Thomas, writing only for himself, made his statement in a concurring opinion agreeing that the court had correctly turned down an appeal from Kathrine McKee, who has accused Bill Cosby of sexual assault. She sued Mr. Cosby for libel after his lawyer said she had been dishonest…

In Justice Thomas’s view, the First Amendment did nothing to limit the authority of states to protect the reputations of their citizens and leaders as they saw fit. When the First Amendment was ratified, he wrote, many states made it quite easy to sue for libel in civil actions and to prosecute libel as a crime. That was, he wrote, as it should be.

“We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” Justice Thomas wrote of the Sullivan decision. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”

It’s not clear here whether he is making a simple federalist argument that this is best left to the states, or a much broader argument that the First Amendment is not incorporated against the states. The first is a bad argument; the second is an incredibly dangerous one. Imagine the difficulty in publishing something if you have to meet 50 different standards for defamation because you could be sued in any state. A free press would become nearly impossible. Is it a coincidence that this also just happens to be almost exactly what Trump has repeatedly called for, to make it easier to sue those in the media who criticize him? One could reasonably doubt that it is.

Thankfully, as in so many things, Thomas is alone on the court in taking this position. No one writes as many solo dissents and concurrences as Thomas, opinions even the other conservative justices refuse to sign on to. That tells you just how far outside the mainstream of legal thinking Thomas truly is. Both of Trump’s appointees to the court have written of their support of the narrow standards in NY Times v Sullivan, so that’s a good thing.

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