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Justice Clarence Thomas raises ire of journalists when he ‘declares war’ on landmark media libel ruling

February 22, 2019 | | Print Article

A call by Justice Clarence Thomas for the Supreme Court to reconsider a landmark freedom of the press ruling has left many professional journalism groups alarmed.

In a concurring opinion on Tuesday, Thomas urged the high court to re-evaluate the 1964 New York Times v. Sullivan ruling which interpreted the First Amendment and radically affected American libel law, The New York Times reported.

(Image: Wikimedia)

“New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Thomas wrote on the ruling that protects journalists and news outlets acting in good faith from libel or defamation lawsuits.

“We should not continue to reflexively apply this policy-driven approach to the Constitution,” Thomas added. “Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments.”

His opinion was part of the Supreme Court’s decision Tuesday to turn down an appeal from Kathrine McKee who accused Bill Cosby of sexual assault and sued the disgraced comedian for libel after his lawyer discredited her with a defamatory letter.

“I write to explain why, in an appropriate case, we should reconsider the precedents that require courts to ask it in the first place,” Thomas wrote, agreeing with the Court’s decision to decline to hear the defamation case.

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

According to the Times:

The case arose from an advertisement in The Times seeking support for the civil rights movement. The ad contained minor errors.

L.B. Sullivan, a city commissioner in Montgomery, Ala., who was not mentioned in the ad, sued for libel. He won $500,000, which was at the time an enormous sum. It was one of many suits filed by Southern politicians eager to starve the civil rights movement of the oxygen of national attention. They used libel suits as a way to discourage coverage of the movement by national news organizations.

 

The Supreme Court’s unanimous decision ruled in favor of The Times.

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But Thomas called for a new look at the ruling that requires a libel plaintiff show that actual malice was intended.

“There appears to be little historical evidence suggesting that the New York Times actual-malice rule flows from the original understanding of the First or Fourteenth Amendment,” the President George H. W. Bush appointee wrote.

His words and intent sent chills down the spines of journalistic groups which fear what it could mean under the current administration in which President Donald Trump has had a contentious relationship with the press.

“It certainly strikes a nerve for journalists and news organizations at a time when some in government have called the press ‘the enemy of the people,’” BakerHostetler’s Mark Bailen told The Daily Caller News Foundation. “It’s against this back drop that you now have a Supreme Court justice who is arguing in favor of eradicating one of the great protections for freedom of the press.”

“Justice Thomas agreed with the Court’s decision to deny review and acknowledged the question presented was fact-specific,” Bailen added. “As such, it was not necessary for him to address the Sullivan decision.”

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Katie Townsend, legal director for the Reporters Committee for Freedom of the Press, was equally concerned about tampering with “settled precedent.”

“It’s deeply troubling that Justice Thomas has suggested the court revisit a settled precedent that serves the most fundamental goals of the First Amendment: encouraging and protecting wide-open debate about public issues, including criticism of public officials,” she told TheDCNF.

“Supreme Court justices and judges across the country — appointed by both parties — have applied the ‘actual malice’ standard established in New York Times v. Sullivan for the last five decades, reflecting a national consensus that it’s both vital and necessary to protect free speech and our free press,” Townsend said.

“For a justice who has been on the court for 27 years, it is therefore an especially ominous moment to publicly suggest revisiting Sullivan — and troubling evidence that Trump’s efforts to weaken public support for our current libel regime, and for the right to criticize the government it enshrines, may well be working,”  Steve Vladeck, Professor, University of Texas School of Law, who wrote in an NBC News opinion piece.

Some, however, pressed against the panic and supported Thomas.

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Frieda Powers
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