Judge Clarence Thomas renewed the call on Tuesday for the Supreme Court to reconsider New York Times v. Sullivanlandmark 1964 ruling that interpreted the First Amendment to make it harder for government employees to prevail in defamation suits.
Justice Thomas wrote that the decision had no constitutional basis as understood by the people who drafted and ratified it. He added, citing an earlier opinion, that this “comes at a heavy price, allowing media organizations and interest groups ‘to hurl false slurs at public figures with near impunity'”.
Judge Thomas has been the subject of a series of news reports raising questions about whether he violated ethics rules. Reports said he failed to disclose gifts and travel from Harlan Crow, a Texas billionaire who has donated to conservative causes.
The Sullivan decision and subsequent decisions require public figures suing for defamation to prove that the defendant acted with “actual malice.” The term is a legal term of art and does not connote the usual meaning of malice in the sense of spite or ill will.
Instead, to prove actual malice, a plaintiff must show that the defendant knew the statement at issue was false or acted with “reckless disregard.” That second phrase is also a term of art. Supreme Court he said that this requires proof that the writer seriously doubted the truth of the statement.
Justice Thomas is a longtime critic of the actual malice standard, and Tuesday’s opinion returned to earlier themes, citing earlier opinions. The Sullivan ruling and those that elaborated on it, he wrote, “were policy-driven decisions masquerading as constitutional law” with “no relation to the text, history, or structure of the Constitution.”
In 2021, Justice Neil M. Gorsuch added his voice to the criticism of this decision. He wrote that much had changed since 1964, suggesting that the actual doctrine of malice may have made more sense when there were fewer and more reliable news sources, dominated by media “employing legions of investigative reporters, editors and fact-checkers.”
Justice Gorsuch added: “What began in 1964 as a decision to tolerate the occasional falsehood in order to ensure robust reporting by a comparative handful of print and broadcast media has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.” . ”
Justice Thomas’ latest opinion came in a case brought by Don Blankenship, a former coal company executive and candidate for the West Virginia Senate. He sued several news organizations for calling him a criminal after he was convicted of conspiracy, a misdemeanor, in connection with the aftermath of the mine explosion.
US Court of Appeals for the Fourth Circuit ruled against himsaying he did not jump the high bar required by the Sullivan decision.
“Some of the statements may have been the product of carelessness and substandard journalistic methods,” Judge Roger L. Gregory wrote for a unanimous three-judge panel. “But at the end of the day, the record contains no evidence that the commentators and reporters responsible for the statements were anything more than confused about how to describe a person who had served a year in prison for a federal offense.”
The Supreme Court rejected Mr. Blankenship to reconsider that decision, without giving reasons. Judge Thomas agreed, saying the case was a poor vehicle for deciding Sullivan’s fate because West Virginia law also requires Mr. Blankenship to prove that actual malice prevails.
“However, in an appropriate case,” Justice Thomas wrote, “we should review the New York Times and our other decisions superseding state libel law.”