Justice Thomas vs. The Media – Opinion

Just a few days after shoring the 2nd Amendment up and playing boogeyman on the left regarding abortion, Supreme Court Justice Clarence Thomas now indicates that he may be interested in revisiting an instance he regards with special regard. NYT vs. Sullivan, a ruling that makes it difficult for people in the public eye — including politicians — to sue media outlets for defamation.

This is the third time since 2019 that Thomas — occasionally joined by Justice Gorsuch — has challenged the idea of “actual malice” as the standard for when a public figure can sue a media outlet. Oder, put another way:

“The result [of Sullivan] is that public figures can only win a libel case if they can prove not only that a statement is false and defamatory, but that a defendant intentionally lied or acted with reckless disregard for the truth–a high burden.”

What that means in practice is that news outlets can “print”, without liability, pretty much anything a source may tell them about a public person, even something defamatory, as long as the source is the one saying it and not the media outlet. The source can be found liable for defamation under the usual terms; the media outlet, unless it showed “actual malice” toward the public figure, can not. Thomas and Gorsuch questioned the 2021 standard. SullivanAs a result, it must be up-to-date to reflect digital realities and the Consitutional meanings of the 1st Amendment.

The Supreme Court has recently been barraged with bids to overrule the landmark press-freedom precedent, which established the requirement that public figures show “actual malice” to succeed on a defamation claim. Critician of the decision claim that it is not consistent with the Constitution’s original understanding and that it must be revised to reflect the changing dynamics of online media. The denial of certiorari for a case called Berisha v. Lawson, Justice Neil Gorsuch invoked “momentous changes in the Nation’s media landscape since 1964” as his reason to revisit Sullivan, while Justice Clarence Thomas pointed to the ease with which the “Pizzagate” conspiracy theory spread online.

This is the Court’s latest petition. Coral Ridge Ministries Media in v. Southern Poverty Law Center, retreads that ground in a case involving a Christian ministry that objected to its placement on the Southern Poverty Law Center’s “Hate Map,” which tracks hate groups across the country. Relying heavily on Justices Gorsuch and Thomas’s separate opinions, as well as a law review article that then-Professor Elena Kagan wrote in 1993 that expressed misgivings about Sullivan’s effects on press norms, the petition hopes to count to four where nearly identical appeals have, at least so far, fallen short.

Prior to that, in 2019’s Bill Cosby case — specifically an appeal by an accuser the court declined to hear — Thomas wrote a concurring opinon in which he again brought up his concerns about Sullivan.

Justice Thomas’ comments came in a concurring opinion after the Supreme Court refused to hear an appeal by one of Bill Cosby’s accusers, Katherine McKee. McGee claimed Cosby had defamed McGee through his lawyer after attacking her credibility as well as her personal life to media outlets. The First Circuit dismissed McKee’s lawsuit finding she voluntarily “thrusted” herself into the public eye, becoming a limited purpose public figure and inviting public scrutiny to the credibility of her allegations. Absent a showing of actual malice—that is with knowledge that the statement is false or with reckless disregard of whether it is false or not—by clear and convincing evidence, a limited purpose public figure cannot recover under a defamation claim, applying the New York Times standard.

Justice Thomas described Justice Thomas’s description of the New York Times standard as “almost impossible” to satisfy as it relates to the classification of limited purpose public figures and public figures. Specifically, reevaluating the First and Fourteenth Amendment, Justice Thomas argues, “If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.” He further contends that the rule defined in New York Times is “largely a judge-made rule of law” citing Bose Corp.., 466 U. S. 485, 501–502 (1984).

Now Thomas is using the Coral Ridge/SPLC case as another opportunity to highlight what he thinks of the “actual malice” standard. As usual, his argument is strong.

Thomas dissented from the Supreme Court’s decision not to hear the lawsuit, which had been dismissed by lower courts for failing to overcome the decades-old legal standard, established in the landmark 1964 New York Times v. Sullivan decision, that public figures who sue for defamation must not only prove defendants made defamatory statements, but that those statements were made with “actual malice.”

“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,’” Thomas wrote.

“SPLC’s ‘hate group’ designation lumped Coral Ridge’s Christian ministry with groups like the Ku Klux Klan and Neo-Nazis,” the justice added. “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.”

The media’s roughshod reporting of anything that “bleeds” (as the saying goes) without consequence is arguably one of the reasons politics has been getting increasingly uglier since 1964 when SullivanIt was decided. If Thomas has his way, public figures will have further recourse to sue those who would defame them — and media outlets would likely start tightening up what they report, making sure the information is accurate rather than simply running with slander just because a high-placed source said it.

Someone ought to tell progressive legislators like Chicago Mayor Lori Lightfoot that Justice Thomas — at least as far as Sullivan is concerned — is not their enemy.

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