Clarence Thomas REALLY Wants To Make It Easier For The Powerful To Sue People For Criticizing Them
from the free-speech-should-matter dept
As we’ve discussed before, Supreme Court Justice Clarence Thomas really does not like the “actual malice” standard required to make a defamation claim against a public figure, as laid out in the extremely important NY Times v. Sullivan case. The actual malice standard confuses many people, because it’s not actually about malice. The standard is that for there to be defamation of a public figure, it needs to be expressed while the speaker knows that the claims are false, or with “reckless disregard” for whether it’s true. And even the “reckless disregard” part is often misunderstood. It’s a much higher bar than simply being negligent. It means that that the speaker had serious doubts at the time of expression that the speech was false.
This standard has been a huge benefit for freedom of speech. Especially in an era when the rich and powerful use abusive SLAPP suits to drag critics into court with no hope of actually winning. Being able to highlight the lack of any evidence for actual malice has been tremendously helpful in getting many cases kicked out of court at the first opportunity.
However, this is exactly why some rich and powerful people are very much against that standard. And that’s even though for years this was considered settled law, with almost no one challenging the standard at all. And then, in 2019 Clarence Thomas tossed out a bizarre hand grenade, in announcing that he thought it was time to revisit the actual malice standard. That has kicked off a series of strategic lawsuits with the goal of getting the Supreme Court to do exactly that. Things got slightly scarier last year when Thomas once again made the same argument, and this time got Neil Gorsuch to make a similar argument. Last year also saw Clarence Thomas’ own mentor, DC Circuit Judge Lawrence Silberman pen an even more unhinged attack on the actual malice standard, which he claims only enables the mainstream media to be mean to his conservative buddies. He basically argues that if only we got rid of it, the media could be more like those awesome folks at Fox News, being nice to conservatives.
So, there had been some concern this week that the Supreme Court might grant the cert petition for Coral Ridge v. SPLC, a case that is attempting to take up Thomas on his offer to ditch the standard.
Thankfully, the court said no. But, it gave Thomas yet another chance to dissent and rant more about the actual malice standard… citing his mentor’s unhinged rant in support.
I would grant certiorari in this case to revisit the “actual malice” standard. This case is one of many showing how New York Times and its progeny have allowed media organizations and interest groups “to cast false aspersions on public figures with near impunity.” Tah, 991 F. 3d, at 254 (opinion of Silberman, J.). SPLC’s “hate group” designation lumped Coral Ridge’s Christian ministry with groups like the Ku Klux Klan and Neo-Nazis. It placed Coral Ridge on an interactive, online “Hate Map” and caused Coral Ridge concrete financial injury by excluding it from the AmazonSmile donation program. Nonetheless, unable to satisfy the “almost impossible” actual-malice standard this Court has imposed, Coral Ridge could not hold SPLC to account for what it maintains is a blatant falsehood.
About the only good thing you can say here is that Gorsuch, nor any of the other Justices, didn’t sign on to Thomas’ dissent or issued their own attacks on actual malice.
So, thankfully, for at least some time, this core 1st Amendment standard remains standing.
Of course, while we wait for Thomas to convince others, Congress could take action. Check that: Congress should take action. Congress can and should codify the actual malice standard in law. Hell, why not go crazy and not just codify the actual malice standard into law, but pair it with a strong, functioning federal anti-SLAPP law that would allow defendants dragged into court as an intimidation and speech suppression tactic to get cases kicked out of court quickly — and force the abusive plaintiffs to pick up the bill?
Filed Under: 1st amendment, actual malice, clarence thomas, defamation, free speech, supreme court
Comments on “Clarence Thomas REALLY Wants To Make It Easier For The Powerful To Sue People For Criticizing Them”
What’s to stop this to-the-right-of-Atilla-the-Hun SCOTUS from striking down such legislation?
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Considering the GOPs current policies, they want actual malice gone so that they can use the law to eliminate criticism of fascist policies. They are also in a position to at least stop congress enshrining actual malice into law.
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Thank you. Have been saying (anonymously) for a while: Don’t trust the courts, don’t trust executive orders. They’re fine as a stopgap, temporary measure, but they are not regime-proof. Laws aren’t either, but they’re more resistant.
mmm… strike down legislation that is more permissive of speech than the status quo? Upon what laws or constitutional rights would he base such an action? Remember that defamation lawsuits are only permitted because of defamation-related law.
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They would just make something up, like they made up the new standard they used to overturn Roe. And the only thing anyone can do about it is a constitutional amendment.
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They have the power to do so, but as the article notes, so far they haven’t shown the interest; Thomas seems to be the only justice who’s champing at the bit to eliminate the actual malice standard. For all that it’s a far-right court, this court has tended to take a pretty maximalist view of speech.
There are advantages to codifying common-law precedent into statutory law; it can provide clarity and consistency.
And while SCOTUS can basically do whatever it wants without review, it’s worth examining their justifications for their rulings. These people are ideologues with a very particular view of how the law is supposed to work. When they’ve overturned precedent, it’s been based on the reasoning that the court invented a standard that isn’t supported in law. If the standard were supported in law, that wouldn’t stop them from overturning it, but it could make them less likely to do so.
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What’s to stop this to-the-right-of-Adolf-Hitler SCOTUS from striking down such legislation?
FTFY. 😉
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Atilla The Hun was also a despotic figure. It’s just that he was further back in time.
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Not saying he wasn’t despotic, just pointing out that we don’t know what his politics were, whereas we know that Hitler was on the far-right. Don’t forget that Stalin was also a despot, killing millions of USSR citizens in gulags and however else, and he was on the far left.
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This is an excellent point. With a fully captured court having the ability to simply strike down as unconstitutional any legislation designed to reign them in, there seems to be a significant flaw in the system of checks and balances.
Clarence Thomas is for the SCOTUS
A poster child for the need for SCOTUS term limits. POTUS and Congress why not the Court. This guy needs to be tossed out into the cruel world and get an actual job.
Re: Term Limits and Jobs
First, we don’t have term limits for Congress. There’s an argument for them but, if you’re using that as an example of why Justices should be similarly limited, there’s nothing there. Secondly, Justice Thomas is on the faculty at George Washington University in addition to his position on the court so he has “an actual job”. Thirdly, retired Supreme Court Justices keep their titles, are allowed to maintain an office at the court, and still draw a salary. The more retired Justices there are, the more Supreme Court Justice salaries will be paid.
Finally, the point of having lifetime appointments for federal judges is to prevent a President from requesting the resignation of judges he doesn’t agree with. How many of the Democrat-appointed federal judges would have survived Trump’s Presidency without that protection? Also, having fixed lengths for their service wouldn’t necessarily protect them. The heads of the FBI and CIA are technically appointed to 10-year terms but they often resign once a President of a different party takes office unless asked to stay on until a replacement is confirmed.
Clarence Thomas, I am thinking of a four lettered word. Three of the letters are from your name, two of them are the first letters of your name and surname, the third is the sixth letter in your name, and all you need is a “u.” Switch those babies around and I think you can see past your megalomaniacal high to see what four-lettered word I’m thinking of.
Having screwed people over wade, it’s only a matter of time before crap hits fan again, organised by the likes of him on the SCOTUS! Mark my words, the entertainment industry won’t be content until they’ve taken control of the Internet world wide that is, not just in the USA and the Supreme Court has removed any and all precedents cast in stone by previous SC judges and also quashed the Constitution!
Once they roll us back to the Jim Crow era we won’t have to listen to him any more.
He is gonna be so shocked when the leopard eats his face…
The question is going to be if SCOTUS decides that the anti-lynching law isn’t grounded in 1800’s and declares it void.
Pity no one will be there to sing ‘Strange Fruit’ once the White Nationalists get a hold of him.
Re: cases he wants to review
he made the point in his opinion striking down Roe v Wade that he wanted to review Obergefell v. Hodges; wonder why he didn’t mention Loving v. Virginia? 🙂
The hypocrisy is breathtaking…
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Their goal is far worse than Jim Crow
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Actual malice works for defamation the way qualified immunity works for civil rights. You can sue government officials only if there’s clear evidence and precedent that they should have known they were violating someone’s rights. You can sue newspapers for defamation only if there’s clear evidence that they should have known they were printing falsehoods.
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😮 😶
I wonder why Clarence Thomas would want to make it easier to sue people who say damaging things about public figures.
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I’m sure the fact that his wife helped plan an insurrection against the United States federal government has nothing to do with his stance~.
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Careful, now. ‘Justice’ Thomas may actually get his own way one day. 😉
Re: Hillary had words
on one of the talking-head political shows this past Sunday, HRC told the interviewer:
“I went to law school with him. He’s been a person of grievance for as long as I have known him,” Clinton said Tuesday during an interview on “CBS This Morning” with Gayle King. “Resentment, grievance, anger,” she added.
This is nothing new apparently…
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Wow. It really says something that Kavanaugh went through a similar confirmation hearing as Thomas and yet he seems like a far less resentful justice.
'How dare they have an opinion I don't like?!'
Of all the examples to use one that involves saying someone is bad and that having negative consequences for them being held up as the wrong outcome is just so very telling.
If that is the road he wants to go down however I wonder if there’s anyone on his side of the political aisle that might have said anything that cost companies or groups money or had some other negative affects… well, all I can say is it’s a good thing republicans are well known for their civility and honesty, especially when it comes to people/companies they don’t like otherwise lowering the bar for suing over speech would seem like something that could come back to bite them in a big way.
Scumbag
Let me say it while I still can. CLARENCE THOMAS IS A SCUMBAG.
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Not really. You get one use out of each scumbag. 😉
Federal Anti-SLAPP Considered Unlikely
Well, the main problem is that defamation is essentially a state-law thing. The Federal courts only deal with it when there is a basis for Federal jurisdiction, and even then they will normally apply the substantive law of the underlying state. Erie Railroad v. Tompkins, 304 U.S. 64 (1938).
The U.S. Constitution bars states from doing certain things, e.g. enforcing race-based covenants, Shelley v. Kraemer, 334 U.S. 1 (1948), or penalizing certain speech, Times v. Sullivan, 376 U.S. 254 (1964). It may add certain defensive protections to a state’s standard law, as, for instance, barring defamation claims for true speech, Garrison v. Louisiana, 379 U.S. 64 (1964), unless that speech offends a police officer, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). That case is commonly known for the ``fighting words” doctrine, which allows punishment without consideration of whether the offending words are true.
This leaves you with the problem that Federal law is not likely to help much. Most defamation cases will remain in state court, so a procedural statute is of limited value. For a substantive statute, you need a Federal ``hook”. That is, the offending speech needs to have affected interstate commerce, or treaty obligations, or some other thing which gives Congress the power to act.
Getting that Federal ``hook” is supposed to be challenging. You need to be able to say that defamation, generally, affects interstate commerce. That is different from saying that a particular libel crossed state lines, so that a libel in Pensacola might injure one’s reputation in Alabama.
For a Federal anti-SLAPP, then, you would need some sort of finding that baseless defamation claims are somehow clogging the channels of commerce. I do not say it cannot happen. Congress does occasionally find seemingly local activity to clog the channels of commerce. In Heart of Atlanta v. U.S., 379 U.S. 241 (1964), the court allowed application of Federal anti-discrimination law to businesses which were involved in accommodating interstate travellers even where the businesses themselves stayed within a local area. But it is difficult to get that Federal ``hook”, and it is supposed to be difficult.
Sure, I would like to see it happen. I just think it is going to be challenging to make a Federal anti-SLAPP law work in state court actions.
Do the readers here really believe defamation has anything to do with free speech?
How many false stories are enough to get you riled up?
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Anyone with any knowledge of the history of free speech and defamation law knows multiple stories of fraudulent defamation (SLAPP) claims being used to attack true and lawful free speech.
Your false stories trying to rile people up will never change that fact, Jhon.
I disagree… here’s why
Rather I believe congress should codify even malice as protected under 1A. We already have too many holes in protected speech.
The problem with cases like this are NOT that the speech exists but how it is presented. Such reports should be declared commentary. Not news.
The problem isn’t what is said but how it’s falsely presented.
This follows my idea that CNN and FNC should highlight their prime time lineup as COMMENTARY and not actual news.
Let’s stand up and protect all speech, no matter how distasteful it is.
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As far as I know, there’s no legal distinction between commentary and news, only between statements of fact and statements of opinion. And that’s as it should be, because you don’t want a journalist defaming someone with false statements of fact and then hiding behind “it was commentary!”
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