The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a separate opinion today, Justice Clarence Thomas argued that the Supreme Court should reconsider one of its most famous First Amendment precedents, New York Times v. Sullivan (which holds that the First Amendment requires defamation claims against public figures to demonstrate "'actual malice'—that is … knowledge that [the statement] was false or … reckless disregard of whether it was false or not").
I've seen some unduly dismissive reactions already, so a few thoughts:
1. Beware the reductio ad Trump. It's true that candidate/President Trump has called for "open[ing] up our libel laws," and it's true that reconsidering New York Times v. Sullivan could lead to opening up our libel laws but it doesn't follow that it's a bad and wrong thing to do.
2. Overturning or modifying the New York Times v. Sullivan standard doesn't have to mean imposing no First Amendment scrutiny whatsoever on private law tort claims involving speech. For instance, co-blogger Eugene Volokh has documented the widespread presence of free speech principles in private law claims shortly after the founding. Justice Thomas might be open to recovering and articulating these principles even if they fall short of the rule adopted in Sullivan.
3. The question of how exactly to apply the First Amendment to private law claims is genuninely hard. Across property law, libel law, and other torts, I don't think the Court has yet found a consistent approach. (You can find the start of such a theory in this recent lecture by Richard Epstein, which, yes, also critiizes New York Times v. Sullivan as a "constitutional mistake.")
4. If one is results-oriented about these things, there were other paths to the result in New York Times v. Sullivan. For instance, around the same time, the Fifth Circuit had limited the ability of southern states to take jurisdiction over libel claims against the New York Times. I am not saying that was right, but if we are reconsidering things, there is a lot to reconsider.
5. I don't think it's that likely to happen, but this isn't a crazy position.