Justice Thomas Is Apparently Serious About Completely Upturning Over 50 Years Of 1st Amendment Law

from the opening-up-our-libel-laws dept

It appears that Supreme Court Justice Clarence Thomas has decided to drop quite a First Amendment bombshell this morning -- suggesting that over half of a century of "settled" First Amendment law might not be so settled.

But, first, back during the 2016 campaign, then candidate Donald Trump uttered his famous "big idea" to "open up" libel laws in response to his displeasure that some of the media was criticizing much of his usual nonsense. This was, quite clearly, an attack on the 1st Amendment -- and it was those strong 1st amendment protections for free speech that have actually helped protect Trump himself from multiple lawsuits.

However, when discussing Trump's original promise to "open up" libel laws, many people pointed out that there really wasn't very much he could do. The 1st Amendment is the 1st Amendment -- not something that Trump can easily change. And specific defamation laws are from each state, not the federal government (and must be bounded by what the 1st Amendment allows). We did note that there were some ways that Trump could create free speech problems, but it was generally agreed upon that it was unlikely to happen in the courts. In 2016, Ken "Popehat" White had a detailed post on how it was exceedingly unlikely that the courts would change the key aspects of 1st Amendment law, with a particular focus on New York Times v. Sullivan, which is the seminal 1964 Supreme Court ruling credited with creating a "re-birth of the 1st Amendment."

As Ken wrote in his piece, NYT v. Sullivan is so settled that there's basically no movement at all to change it.

Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above.1 You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find on... chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial — at least not from conservatives. There's been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there's no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of "hate speech" and other "hurtful" words. It seems unlikely that Trump would appoint any of these.

In short, there's no big eager group of "overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

The key bit of NYT v. Sullivan was to establish that there's a very high bar in defamation cases involving a "public figure." Specifically, the standard the Supreme Court established is that in such cases, a plaintiff need to show "actual malice" -- which doesn't just mean that the defendant really dislikes the plaintiff. The actual malice standard isn't actually about "actual malice," but rather that the speaker made the statements knowing they were false, or exercising "reckless disregard" for whether or not they were true. The Supreme Court established that this high bar was necessary to satisfy the First Amendment, and guarantee that no laws were made that infringed up on the right of free expression.

So, the bombshell this week was a concurrence by Justice Thomas in denying a petition to rehear a defamation case concerning Bill Cosby and one of his accusers. The specifics of the case revolved around whether or not the accuser qualified as a "public figure" and thus had to clear the higher bar as established by the NYT's case. The 1st Circuit had ruled in 2017 that McKee was a public figure. The cert petition tried to challenge that decision. The Supreme Court decided not to hear it, which isn't all that surprising. What was surprising is that Thomas decided to use this decision not to hear the case (with which he agreed) to assert something much more controversial: that NYT v. Sullivan was bad law and shouldn't bind the court:

New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own “‘federal rule[s]’” by balancing the “competing values at stake in defamation suits.” Gertz, supra, at 334, 348 (quoting New York Times, supra, at 279).

We should not continue to reflexively apply this policydriven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

As Ken White had written in his piece, this is somewhat surprising -- bordering, but not quite, on chemtrails level nuttiness. Thomas goes on for pages explaining why he disagrees with the ruling in Sullivan, first arguing that because the standard itself is not in the Constitution, there's no Constitutional support for it:

But the Court also addressed “the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.” Id., at 256. The Court took it upon itself “to define the proper accommodation between” two competing interests—“the law of defamation and the freedoms of speech and press protected by the First Amendment.” Gertz, 418 U. S., at 325 (majority opinion). It consulted a variety of materials to assist it in its analysis: “general proposition[s]” about the value of free speech and the inevitability of false statements, New York Times, 376 U. S., at 269– 272, and n. 13; judicial decisions involving criminal contempt and official immunity, id., at 272–273, 282–283; public responses to the Sedition Act of 1798, id., at 273– 277; comparisons of civil libel damages to criminal fines, id., at 277–278; policy arguments against “selfcensorship,” id., at 278–279; the “consensus of scholarly opinion,” id., at 280, n. 20; and state defamation laws, id., at 280–282. These materials led the Court to promulgate a “federal rule” that “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279–280. Although the Court held that its newly minted actual-malice rule was “required by the First and Fourteenth Amendments,” id., at 283, it made no attempt to base that rule on the original understanding of those provisions.

That's a... somewhat bizarre version of Constitutional originalism, and would suggest that basically none of the standards the Supreme Court has established in its history have any merit. Yikes.

New York Times was “the first major step in what proved to be a seemingly irreversible process of constitutionalizing the entire law of libel and slander.”

Well, yeah. Because, by definition, libel and slander impact speech, and the 1st Amendment says that you can't pass laws that prohibit free expression. So, unless Thomas is actually arguing that all defamation law is unconstitutional (which would be an even more extreme position), then this argument makes no sense. But he's not arguing that at all. It goes on for pages, talking about how early in the US's history libel laws were super important -- especially in protecting the reputations of famous people:

Far from increasing a public figure’s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels. See 3 Blackstone *124 (“Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man”); 4 id., at *150 (defining libels as “malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule” (emphasis added)). Libel of a public official was deemed an offense “‘most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.’”

After talking about a bunch of highly questionable cases from a century or so before the NY Times decision, Thomas concludes with the claim that states are more than capable of "balancing" the rights of free expression with "reputational harms":

We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.

This is an ahistorical take on reality. Defamation laws were routinely used by the powerful to silence criticism. Indeed, that is still the case in many other countries that don't have a standard akin to the actual malice standard in the US. We routinely write about speech squelching cases in places like the UK and Australia. As the Atlantic's coverage of the 50th anniversary of the NYT v. Sullivan decision states:

If there were no Sullivan, there likely would not have been a release of the Pentagon Papers or a rigorous investigation into Watergate or much of any withering criticism of government that appears today in any medium.

The NYT v. Sullivan is a supremely important case in establishing the 1st Amendment as truly protecting free speech -- and specifically protecting the rights of anyone to criticize public officials. It is disappointing and somewhat shocking that any Supreme Court Justice is willing to even consider going back on that standard. Hopefully, the other 8 Justices retain their recognition of its importance.

Filed Under: 1st amendment, actual malice, bill cosby, clarence thomas, defamation, free speech, libel, mckee, nyt v sullivan

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The First Word

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  1. identicon
    TripMN, 20 Feb 2019 @ 8:58pm

    Re: Re:

    I think he's got it mixed up. Thomas writes opinions, he just spent 10 years on the Supreme Court where he didn't ask a single question from the bench.

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