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Justice Thomas Again Speaks Out—But Alone—Against New York Times v. Sullivan Libel Standard
From this morning's opinion concurring in the Court's refusal to hear the case Blankenship v. NBCUniversal, LLC (for more on the underlying dispute, which involved then-Senate-candidate Don Blankenship suing outlets for calling him a felon when he had been convicted only of a serious misdemeanor, see here):
"The common law of libel at the time the First and Fourteenth Amendments were ratified did not require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages." To be sure, the law was not static; "[i]n the first decades after the adoption of the Constitution," the rule that "truth or good motives was no defense" to libel "was changed by judicial decision, statute or constitution in most States." But from the founding until 1964, the law of defamation was "almost exclusively the business of state courts and legislatures."
The Court usurped control over libel law and imposed its own elevated standard in New York Times Co. v. Sullivan (1964). It decreed that the Constitution required "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." The Court did not base this "actual malice" rule in the original meaning of the First Amendment. It limited its analysis of the historical record to a loose inference from opposition surrounding the Sedition Act of 1798, and primarily justified its constitutional rule by noting that 20th century state-court decisions and "the consensus of scholarly opinion apparently favor[ed] the rule."
I continue to adhere to my view that we should reconsider the actual-malice standard. "New York Times and the Court's decisions extending it were policy-driven decisions masquerading as constitutional law." The decisions have "no relation to the text, history, or structure of the Constitution." And the actual-malice standard comes at a heavy cost, allowing media organizations and interest groups "to cast false aspersions on public figures with near impunity." The Court cannot justify continuing to impose a rule of its own creation when it has not "even inquired whether the First or Fourteenth Amendment, as originally understood, encompasses an actual-malice standard."
Petitioner Don Blankenship asks us to revisit New York Times. I agree with the Court's decision not to take up that question in this case because it appears that Blankenship's claims are independently subject to an actual-malice standard as a matter of state law. See State ex rel. Suriano v. Gaughan (W. Va. 1996). In an appropriate case, however, we should reconsider New York Times and our other decisions displacing state defamation law.
Justice Gorsuch has at times similarly called for reconsidering New York Times v. Sullivan, and Justice Kagan, back in 1993 (when she was an academic), criticized New York Times v. Sullivan as well. But here Justice Thomas was writing by himself.
For those who are interested, I thought I'd repeat some excerpts from some of the classic arguments by the Justices in this area (I should note that I tentatively support keeping the New York Times rule, as likely the lesser of the evils, but I think there are important arguments on both sides).
[1.] First, Justice Brennan in New York Times, arguing for the "actual malice" test:
"Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors…. The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not merely discussion, but information…. Errors of fact, particularly in regard to a man's mental states and processes, are inevitable…. Whatever is added to the field of libel is taken from the field of free debate."
Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error…. [Government officials] are to be treated as "men of fortitude, able to thrive in a hardy climate" …. Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations….
The state rule of law [which generally imposed strict liability for defamation] is not saved by its allowance of the defense of truth…. A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to … "self-censorship." Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. {Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about "the clearer perception and livelier impression of truth, produced by its collision with error." Mill, On Liberty.} …
Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone." The rule thus dampens the vigor and limits the variety of public debate….
The constitutional guarantees require, we think, 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….
[2.] Some more from Justice Brennan in Garrison v. Lousiana (1964), explaining why he wouldn't go all the way to abolishing libel claims even as to knowing or reckless falsehoods (as Justices Black, Douglas, and Goldberg had argued, at least for speech on matters of public concern):
Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration….
[T]he use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality…." Chaplinsky v. New Hampshire….
[3.] Then still more from Justice Brennan's dissent in Gertz v. Robert Welch, Inc. (1974), arguing against a negligence standard (which the Gertz majority adopted when private figures sought proven compensatory damages):
Adoption … of a reasonable-care standard … will likewise lead to self-censorship since publishers will be required carefully to weigh a myriad of uncertain factors before publication. The reasonable-care standard is "elusive"; it saddles the press with "the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait." Under a reasonable-care regime, publishers and broadcasters will have to make pre-publication judgments about juror assessment of such diverse considerations as the size, operating procedures, and financial condition of the newsgathering system, as well as the relative costs and benefits of instituting less frequent and more costly reporting at a higher level of accuracy….
And, most hazardous, the flexibility which inheres in the reasonable-care standard will create the danger that a jury will convert it into "an instrument for the suppression of those 'vehement, caustic, and sometimes unpleasantly sharp attacks,' … which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail."
[4.] And now Justice White in his concurrence in the judgment in Dun & Bradstreet v. Greenmoss Builders (1985), arguing against the "actual malice" test:
I have … become convinced that the Court struck an improvident balance in the New York Times case between the public's interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation…. Criticism and assessment of the performance of public officials and of government in general … are not at all served by circulating false statements of fact about public officials. On the contrary, erroneous information frustrates these values. They are even more disserved when the statements falsely impugn the honesty of those men and women and hence lessen the confidence in government….
Yet in New York Times cases, … [t]he lie will [often] stand, and the public continue to be misinformed about public matters … because the putative plaintiff's burden is so exceedingly difficult to satisfy and can be discharged only by expensive litigation. Even if the plaintiff sues, he frequently loses on summary judgment [or on appeal] … because of insufficient proof of malice…. [And when the plaintiff gets before a jury], the jury will likely return a general verdict [because of insufficient proof of actual malice] and there will be no judgment that the publication was false ….
The public is left to conclude that the challenged statement was true after all. Their only chance of being accurately informed is measured by the public official's ability himself to counter the lie, unaided by the courts. That is a decidedly weak reed to depend on for the vindication of First Amendment interests—"it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not 'hot' news, and rarely receive the prominence of the original story."
{It might be suggested that courts, as organs of the government, cannot be trusted to discern what the truth is. But the logical consequence of that view is that the First Amendment forbids all libel and slander suits, for in each such suit, there will be no recovery unless the court finds the publication at issue to be factually false.
Of course, no forum is perfect, but that is not a justification for leaving whole classes of defamed individuals without redress or a realistic opportunity to clear their names. We entrust to juries and the courts the responsibility of decisions affecting the life and liberty of persons. It is perverse indeed to say that these bodies are incompetent to inquire into the truth of a statement of fact in a defamation case.}
Also, by leaving the lie uncorrected, the New York Times rule plainly leaves the public official without a remedy for the damage to his reputation. Yet the Court has observed that the individual's right to the protection of his own good name is a basic consideration of our constitutional system, reflecting "our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty." The upshot is that the public official must suffer the injury, often cannot get a judgment identifying the lie for what it is, and has very little, if any, chance of countering that lie in the public press….
[I]f protecting the press from intimidating damages liability that might lead to excessive timidity was the driving force behind New York Times[,] … the Court engaged in severe overkill…. [I]nstead of escalating the plaintiff's burden of proof to an almost impossible level, we could have achieved our stated goal by limiting the recoverable damages to a level that would not unduly threaten the press. Punitive damages might have been scrutinized … or perhaps even entirely forbidden. Presumed damages to reputation might have been prohibited, or limited, as in Gertz v. Robert Welch, Inc….
It could be suggested that even without the threat of large presumed and punitive damages awards, press defendants' communication will be unduly chilled by having to pay for the actual damages caused to those they defame. But other commercial enterprises in this country not in the business of disseminating information must pay for the damage they cause as a cost of doing business, and it is difficult to argue that the United States did not have a free and vigorous press before the rule in New York Times was announced….
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Justice Thomas is going far further than Justice Gorsuch ever did. He is not just calling for modifying the Sullivan standard. He is saying the First Amendment should have no role at all in policing libel law, or at least the judiciary has no warrant to say libel at common law is unconstitutional. He would accordingly allow states to return to the common-law position that neither truth nor good moditives are defenses to libel. He would allow defamation to be a strict liability tort, actionable without having to prove anything other than that the alleged slander or libel, however truthful, harmed the plaintiff’s reputation.
Is this Justice Thomas’s default now: push everything to the state level?
Is that such a bad idea?
If the key word is “everything” then yes.
Have you stopped raping little boys?? See, that’s not libel because I heard on AlGores Internets that you used to rape little boys, so I’m just asking if that’s true. And I’m sure some of the (other) Poindexters will find decisions only 1 Surpreme supported that are now considered righteous. Jeez-Us, if Clarence T said Shit stinks you assholes would have a problem with it (I can hear it now, “it’s not the Shit that stinks, but the Anaerobic Bacteria (Bateroides Fragilis, primarily) in the Shit….”)
Frank “My Shit does stink, Bigly!”
Frankie boy….take a deep breath once in a while, mmm-K?
You’re worth a couple of laughs so wouldn’t want to lose you.
I noticed you didn’t answer my question,
well you sort of did,
“not that there’s anything wrong with that” (I mean as long as you’re not eating them like Jeffy Dahmer did)
Frank
I didn’t think it was a serious question but ok, I don’t rape little boys.
Now your turn: Why do you always bring up penises, raping boys, and general pedophilia on a law blog?
It’s . . . it’s like you’re fixated on the topic.
…I’m assuming it’s because he’s part of the “grass roots” campaign to support Jim Jordan as Speaker of the House?
Umm, Because they’re “against the law”??
I thought this was a “Law Blog” of course not sure why Jerry Sandusky’s a regular “Contributor”
But great, you don’t rape little boys (anymore? I won’t ask)
Now if they can just get you back in men’s clothing…..
Frank
Your characterization is not even remotely close to Thomas’ stated position on the 1st amendment and libel law
He is saying the First Amendment should have no role at all in policing libel law
He is saying no such thing. Do you ever read anything you’re commenting on before commenting on it?
Regardless, we should still provide encouragement when he doesn’t post 10 paragraphs.
I’m surprised to hear that “truth” is not a (complete) *defence* at common-law to an action in defamation (slander/
libel). I cannot identify any common-law jurisdiction in which such a proposition would be embraced as accurately stating the law.
The onus is of course on the defendant to prove the defence. The plaintiff bears the onus of proving that the defendant communicated to third parties imputations which can be characterised, in light of the undersdanding of an ordinary reasonable recipient, as defamatory.
As for “good motives”, I’m rather at a loss where to begin in addressing such a supposed defence or mitigating factor.
Your comment is strange. Perhaps you may have misread me?
Zenger is no more nor less than authority for the proposition that truth is a complete defence.
“Seditious libel” is a separate tort, not to be conflated with defamation.
See my comment below. New York was the first state to change the law, in 1804. Until then, truth was no defense to libel in any state in the United States.
Quite erroneous, I’m afraid. Mighg you be referring strictly to libels which carried criminal liability?
Zenger was not presented as “authority” for anything; it was presented as evidence that at common law, truth was not a defense.
I’ll read more into this case. I’m not a US lawyer. Thanks for your reply.
What, then, & notwithstanding it were a jury trial, is Zenger authority or compelling evidence for at (e.g.) New York common-law?
I mean: what *legal* proposition?
It was a case of criminal [seditious] libel.
Why ought its authority (strictly or evidential) be applicable to the civil action for defamation?
“Presented” by whom?
The question as to whether “truth” is a defence at common-law must juristically depend on authority.
Why is Zenger an authority applicable to the discrete question as to whether truth is a complete defence to the civil action for defamation (slander/libel)?
Zenger isn’t a case on a civil tort. And it didn’t hold that truth isn’t a complete defence even to a criminal indictment on a seditious libel.
(To be sure, that it did not hold this appears to have been a departure from the common-law of seditious libel; but such a departure evidently was embraced by the common-law. At any rate, the example isn’t apt, since it deals with criminal defamation).
Defamation *is* a strict liability tort: proof of actual damage isn’t its gist.
But “truth” is a complete defence to the action. A public interest ground would be a qualified defence, successful in the absence of actual malice.
Not at common law. New York was the first state to change the law, by act of the state legislature, after the Supreme Court of New York applied the truth-is-no-defense common-law rule and upheld the conviction in People v. Croswell in 1804. Other states changed their law afterwards.
https://en.m.wikipedia.org/wiki/People_v._Croswell
Thank you for the reference,
But Croswell was a case of *criminal* libel. It’s ratio did & does not apply to the common-law of civil defamation.
“He would accordingly allow states to return to the common-law position that neither truth nor good moditives [sic] are defenses to libel.”
The old (non-actual) malice standard coexisted with a defense of truth for quite some time. Any evidence that Justice Thomas would abolish truth as a defense? His criticism seems to be aimed at the actual malice standard.
An eventual Thomas v. ProPublica lawsuit would be one way of dealing with Supreme Court ethics reform.
Just call me “Poindexter”
Minersville School District v. Gobitis, 310 U.S. 586 (1940), was a 8-1 decision by the Supreme Court of the United States involving the religious rights of public school students under the First Amendment to the United States Constitution. The Court ruled that public schools could compel students—in this case, Jehovah’s Witnesses—to salute the American flag and recite the Pledge of Allegiance despite the students’ religious objections to these practices. This decision led to increased persecution of Witnesses in the United States. The Supreme Court overruled this decision three years later in West Virginia State Board of Education v. Barnette (1943)
The Court’s decision was nearly unanimous; only Justice Harlan F. Stone dissented. In an 8-to-1 decision, the Court upheld the mandatory flag salute, declining to make itself “the school board for the country.”
Frank “That’s “Dr” Poindexter, thankyou”
The biggest problem with NYT v. Sullivan is that it makes a major assumption that is no longer true. It assumes that the “public figure” plaintiff is perfectly capable of rebutting a smear by Big Media by holding a press conference, which we can assume that all the other Big Media will (1) attend and (2) report on honestly, so that the plaintiff can have his say rather than sue.
The Big Media entirely abandoned honesty at least 15 years ago, so (2) fails; and cancel culture has killed (1) as well.
This is why defamation law needs to be changed, not only by dropping the “actual malice” standard but by being expanded to remove absurdities such as the ruling against Candace Owens (in which a “fact check” was wrongly ruled to be non-actionable opinion when that very phrase promises fact).
Except that the actual case (which I am sure you have read) does not make that assumption. Instead, the case deals with the concept of what amount of robust debate we should countenance, and that allowing defamation to intrude on areas of political speech (the core concern of the first amendment) would chill robust discourse.
” A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount — leads to a comparable ‘self-censorship.’ Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.”
Gertz (and the expansion of Sullivan to “public figures” more generally, which started earlier) is where the “they have access to the media and can reply” notion came from. It’s definitely part of defamation law now, however, even if you are right that it didn’t come from Sullivan originally.
A difference between public figures and public officials is that the latter necessarily have police power over private individuals.
(just arguing a point here, not the overall gist)
“. . . which we can assume that all the other Big Media will (1) attend and (2) report on honestly, so that the plaintiff can have his say rather than sue.”
So a Big Media company publishes something which is a pre-Sullivan no-no.
Why are you bringing in ‘other Big Media’ into the picture?
That’s never been a factor – before or now.
It seems to me that:
1. Justice White was clearly wrong.
2. The New York Times rule may well be the lesser evil.
3. Justice Thomas is nevertheless right that it’s a rule that should have been crafted by Congress, not invented by the court.
No, Justice Thomas is simply wrong about that. The Court has an obligation to answer constitutional questions that come before it. The role of the judiciary is not to issue judgments even if the laws those judgments may be based on are unconstitutional.
Just as a President must not violate his oath to uphold the Constitution, the same goes for the judiciary. If the judiciary upholds unconstitutional laws by issuing judgments based on those unconstitutional laws, it is violating its oath.
The Sullivan decision is not beyond criticism. But there are very strong arguments for that decision based on the text and structure of the Constitution.
But Thomas AJ doesn’t disavow the obligation. Rather, he rejects with reasoning the premise that, in the case of defamation & its intersection with the 1st Am., the Constitution gives rise to any such obligation.
Assuming, ex hypothesi, that the 1st Am. does not Constitutionally *control* the action for defamation, then it’s surely entirely uncontroversial to state that any power legally to reform the action resides in Congress (assuming there be a head of power) or in the States.
How would Congress even be able to do that under Justice Thomas’ constructions of the Commerce Clause and Section 5 of the 14th Amendment?
To paraphrase Justice Harlan in Bivens, it’s the Court or nothing.
Justice Thomas’s statement that heightened protections to speak about public figures has no basis in the structure of the Constitution is false. First of all, there is this little thing called the First Amendment, whose entire purpose is to allow people to express themselves. Second, even before we get to the First Amendment, we have this concept that politicians are public servants, which is reflected textually in the prohibition on the United States granting anyone a title of nobility and furthermore in the concept of elections at all. We the People, as the masters who employee these public servants need breathing room to discuss and even speculate about the motives and behaviors of the politicians who serve us.
So, Justice Thomas is just wrong when he asserts that there are no structural factors at play here.
Granted, we do have a problem with a lot of lies and falsehoods about public figures circulating and the difficulty that people have in determining truth from reality. It could be argued that the whole mess makes it more difficult to hold public officials accountable, because a politician accurately accused of wrong-doing can just spread lies (or have his or her supporters spread lies) about those that are working to hold them accountable. That is, one could argue in favor of libel liability not based on protecting the reputation of individual politicians, but instead on creating a cleaner information environment. The trade-off here would be that some people would be more hesitant to make comments about public figures even when they are, in fact, engaged in problematic behaviors.
My point here isn’t where one should come down on this question. But instead that I think Justice Thomas is simply wrong. There are very strong First Amendment and structural constitutional issues here and the Court’s decision in Sullivan, whether right or wrong, was completely legitimate.
Justice Thomas’s statement that heightened protections to speak about public figures has no basis in the structure of the Constitution is false.
Can you quote for us the text where Thomas said anything like that?
“New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. The decisions have no relation to the text, history, or structure of the Constitution.”
That’s not what Welker claimed Thomas said. Thomas was speaking specifically about the rationale used to support the “actual malice” rule. He didn’t say that there was “no basis in the structure of the Constitution” for any “heightened protections to speak about public figures” (though I’m not sure such a statement would be wrong). What he did say about that was simply…
“The common law of libel at the time the First and Fourteenth Amendments were ratified did not require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages.”
The requirement to demonstrate actual malice is the heightened protection!
The requirement to demonstrate actual malice is the heightened protection!
You’re still missing the point. Thomas said the rationale used to formulate THAT PARTICULAR “heightened protection” was not supported by COTUS, not that “heightened protections to speak about public figures has no basis in the structure of the Constitution” in general.
No, I’m not missing any point. You know that three sentences from the above opinion are not the entirety of Thomas’s comments on the subject, right? Thomas is not positing the existence of some hypothetical alternative heightened standard other than actual malice that nobody has heretofore ever considered, proposed, or discussed. His position is that the constitution imposes no limitations on libel litigation.
No, I’m not missing any point. You know that three sentences from the above opinion are not the entirety of Thomas’s comments on the subject, right?
I asked for one or more quotes where Thomas is saying what Welker claimed he was saying. You provided a single quote that says no such thing. That’s your problem, not mine.
The point Thomas AJ makes is that, at common-law, the pl.’s onus of proving actual malice arises only when a defendant pleads (e.g.) a qualified “public interest” defence.
His point is that the Constitution does not in terms mandate that a “public figure” must prove actual malice to establish a *liability* in the defendant.
He is not denying that the Constitution has a bearing on the common-law of (civil) defamation. Rather, he is denying that the Constitution expressly or by necessary intendment upends that law by requiring a public figure to prove actual malice as a *condition* of an action to hold a defendant liable for (civil) defamation.
[I mean to reply to David’s thoughtful post]
Was George Zimmerman a public figure?
Of course. He was the first person to be described as a new class; White/Hispanic.
I take it that the points articulated by Thomas AJ go to the question as to whether the Constitution relevantly *abrogates* an element of the (common-law) action itself, not whether the Constitution may incidentally supervene on the action, such that one or other of its elements must adapt to a putatively Constitutional prescription.
Does the 1st Am., by direct force of its proper construction, abrogate a relevant element of the action? Or does the 1st Am. indirectly affect the action (requiring, e.g., that a public interest ground be recognised as a qualified defence)?
I don’t myself detect in the express Constitutional guarantee any implied license freely to defame by speech or expression. I do, however, detect a Constitutional preference for freedom of speech & expression even in the case of libel or slander. But such a preference, being specifically unenumerated, can apply only indirectly & must attenuate itself to the received law on libel and slander. Which is why it makes sense that Constitutional requirements factor in as qualified defences.
FWIW it does not change the fact that morally Blankenship is a fucking murderer, and in a just system he’d be rotting in prison atm.
Thank you. You got me to look up Don Blankenship. It’s hard to see how it’s possible to libel Mr. Blankenship, CEO and Chairman of Massey Coal. The distinction between his misdemeanor conviction on violating safety standards and murder is thin.
The distinction between his misdemeanor conviction on violating safety standards and murder is thin.
I’m not going to even remotely defend Blankenship, but you seem to not understand the difference between someone being labeled a “felon” and them actually being one.
In England or Wales, before “felony” and “misdemeanour” were replaced by “indictable” and “summary” offences, had Blankenship sued for libel, the defendants would have paid £10 into court as a settlement offer that he would have refused, the case would have gone to court, the jury would have found for him and awarded him one penny and he’d then be liable for defence costs as well as his own.
Absolutely none of which is even remotely relevant to what I said.
That depends on what definition of felony you want to use. Does the statute have to say it’s a felon? Is it only the 9 common law felonies? Is it the standard definition of a crime punishable by 1 or more years imprisonment (some say only more than 1 year)?
If it is the latter he can be described as a felon. If the former he isn’t. But I don’t think defamation law requires 1 over the others even if the state law treats it a one way and not another. In general speech you can probably say a person is a felon if they meet any of those definitions and the facts would support that opinion
That depends on what definition of felony you want to use.
The definition of “felony” in the jurisdiction where he was charged with, tried for and convicted of commission of an offense that is expressly defined as a Class A misdemeanor.
No, that’s stupid.
That depends on what definition of felony you want to use.
I don’t think it does. It depends on the definition of “felon” you want to use. Blankenship, of course, wants it to mean “someone convicted of a felony” (but that’s why we have the term “convicted felon.”) It can also mean someone who committed a felony. Like, “OJ is a murderer.” He wasn’t convicted, but that doesn’t mean he isn’t one.
I can certainly see why Justice Thomas would like to see much tighter constraints on criticism of public figures. In fact, his interest is so blatant I trust (ha) he will recuse himself from any future case on the issue.
I can certainly see why you prefer the ability to lie about others with impunity.
What bugs Justice Thomas is that journalists tell the truth (which Justice Thomas and his associates strive to conceal) about the financial, personal, and professional interactions among Justice Thomas, his wife, the Federalist Society, and wealthy wingnuts.
Defamation does not constrain “criticism” (properly understood) of any “figure”, private or public.
There might be more to this than Justice Thomas’ aggravation concerning people who tell the truth about misconduct he prefers to conceal (and his related desires to chill speech and retaliate against journalists) . . . but probably not.
It seems likely that after the Court is enlarged Justice Thomas will still be a lone dissenter with respect to many issues . . . and that a substantial number of his majority opinions will be reversed.
If I may say, such a comment strikes me as base – & thus without substantive intellectual value – in its apparently vulgar polemicism.
Then again, I’m not American. It may well be that the contingently partisan & anti-intellectual presuppositions which actuate your view do in fact accurately reflect the state of US law.
This is a lamentable state of affairs – if true.
It may well be that the contingently partisan & anti-intellectual presuppositions which actuate your view do in fact accurately reflect the state of US law.
Kirkland’s rantings are reflective of nothing other than his own mental illness.
Oh. I see. I am sorry to hear this. I didn’t mean to be provocative.
Not at all provocative. Your outsiders take captured Kirkland perfectly.
Arthur…are you still banging that expanded Court drum? 🙂
Do you still have hope right-wingers are going to stop getting stomped by better Americans in the culture war?
It’s nice being on the right side of history, the winning side at the marketplace of ideas, and the victorious side in the modern American culture war. Clingers will just have to take my word for it.
Thomas’ statement about the malice standard was unnecessary. His views are by now well known.
It might (or might not) be useful if the court made a habit of noting when denial of certiorari was due to an adequate and independent state law basis for the judgment below. “Stop wasting our time asking for an advisory opinion.”
But from the founding until 1964, the law of defamation was “almost exclusively the business of state courts and legislatures.”
I don’t see it being viable to have 51 different standards for when defamation claims are disallowed by freedom of the press. Especially when it comes to national politics. It would encourage forum shopping, if nothing else.
Forget Justice Clarence Thomas, New York Times v. Sullivan was correctly decided 60 years ago. As for lingering concerns about the heavy burden in proving actual malice, this problem is solved by pretrial discovery which allows plaintiffs to see all of defendant’s emails and text messages. Proof that this works and is sufficient is the recent settlement in Dominion Voting Systems v. Fox News Network.
I certainly think the Supremes should monitor the states (and feds) to make sure they don’t misuse libel law.
Yet I don’t think the actual [sic] malice standard is the way to go.
Start with loser pays and anti-SLAPP laws so people who are accurately accused of stuff will hesitate before filing defamation suits just to vex their (truthful) accusers.
But if the accusation was false, let the accuser pay, even if there was no “actual” [sic] malice. “Maybe the Senator isn’t a sheep molester, but the media outlet did its due diligence before making its unfortunate mistake, so the Senator loses,” doesn’t seem like a fair doctrine.
I’m presuming of course that the false accusation was actually damaging to the accused, which is what triggers the old rule.
As for Thomas’ originalism:
I used to go out with originalism, we had some good times, but we drifted apart. Nowadays, we get together occasionally to help interpret specific terms of art or specific references to practices as a particular time. But in general, I no longer make goo-goo eyes at originalism, and I’m seeing other doctrines.
But I don’t want to ignore the amendment process in Art. V, so any school of interpretation which substitutes interpretation for amendment is not for me.
Instead, I’d like to resolve ambiguities in the law with reference to longstanding principles undergirding our law. In this context, this means the need for a republican (small r) government with informed voters. If the traditional common-law rules interfere with the functioning of such a government, then so much for the traditional rules, but in fact I think republican government and the traditional rules can coexist. Just combine the traditional rules with a large dose of loser pays and anti-SLAPP, like I said above.
Some interesting note. (Not Legal Advice)
If we look at the wording of the First Ammendment alone, it Doesn’t give ANY Exceptions to Free Speech, at most maybe extra emphasis on protecting political speech but that’s it. So an argument can be made that if we are going by the First Ammendment, then we Shouldn’t even have Defamation Laws to begin with.
Also, If we are going to have any Exceptions to a Right as Fundemental as Freedom of Speech and Press, then it must be Judged with a Very High Standard, that us probably the basis for the NYT Ruling. Also if we look at cases like the Dominion Lawsuit against Fox News and Depp v Heard, those cases show that Actual Malice may not be this impossible standard to prove, also with that in mind an argument can be made that if we are going to ammend the NYT Ruling then it should be applying the Actual Malice standard to All Defamation Cases across the board, not just the ones involving public figures.