The Volokh Conspiracy

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Supreme Court

Justice Thomas (Still) Wants Supreme Court to Revisit "Actual Malice"

Justice Thomas reiterates his desire to revisit the contours of defamation law and New York Times v. Sullivan.


The Supreme Court only granted certiorari in one case this morning, MOAC Mall Holdings LLC v. Transform Holdco LLC, concerning Section 363(m) of the Bankruptcy Code.

Among the cases in which the Supreme Court denied certiorari was Coral Ridge Ministries Media v. Southern Poverty Law Center, in which Coral Ridge sued SPLC for defamation for labeling the ministry a "hate group" due to its opposition to homosexuality. Coral Ridge maintained this was a defamatory claim, which had the consequence of preventing Coral Ridge from participating in the AmazonSmile program for charitable donations.

The district court concluded that SPLC's characterization of Coral Ridge was protected opinion, and that Coral Ridge could not demonstrate that SPLC had acted with "actual malice," as is required by New York Times Co. v. Sullivan. The Eleventh Circuit affirmed, relying solely on the "actual malice" standard, prompting the petition for certiorari.

The Supreme Court denied Coral Ridge's petition for certiorari, prompting a dissent from Justice Thomas, who reiterated his desire to reconsider NYT v. Sullivan. Justice Thomas wrote, in part:

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." . . . 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. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 771 (1985) (White, J., concurring in judgment).

Because the Court should not "insulate those who perpetrate lies from traditional remedies like libel suits" unless "the First Amendment requires" us to do so, Berisha, 594 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 3), I respectfully dissent from the denial of certiorari.

As the citation to his own prior opinion indicates, this is not the first time Justice Thomas has called for reconsidering NYT v. Sullivan, and I doubt it will be the last.