Clarence Thomas, the normally reticent Supreme Court justice, unexpectedly stepped out earlier this year to volunteer a lone opinion on a legal precedent fundamental to American values of free expression. His target: New York Times v. Sullivan, the unanimous Supreme Court ruling that has sustained vigorous public discourse for more than 50 years. The 1964 ruling established standards for public figures to prove libel in a court of law, standards Thomas called “almost impossible” to meet. “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Thomas wrote in his unsolicited broadside. He said striking the balance between public discourse and personal reputations should be left to the states.
Unsurprisingly, Thomas’s view echoes that of his mentor, the late justice Antonin Scalia, who once said he “abhorred” the ruling for expanding the First Amendment what he felt was beyond the Founders’ intent. And, of course, of President Trump, who has vowed to gut the nation’s libel laws over everything from testimony about Brett Kavanaugh to a “Saturday Night Live” sketch he didn’t like. “We’re going to open up the libel laws,” Trump said in one memorable speech, “so when they write purposefully negative and horrible and false articles, we can sue them and win lots of money.”
It may seem unlikely that the Supreme Court would gratuitously overturn settled law that was endorsed by a 9-0 ruling of a previous court (talk about stare decisis!), but momentum is quietly building in conservative circles to revisit the case. Make no mistake: The corrosive effects of presidential rants against “enemies of the people,” the partisan conspiracy theories, gaslighting, and disrespect for “elite” expertise — all have weakened public support for the press and undermined constitutional protections.
Just last week the Heritage Foundation convened a distinguished panel to give some intellectual heft to the cause. At issue was the “actual malice” standard set down in the ruling, which says that to prove libel, a public figure must show that false, defamatory statements were made knowingly, with “reckless disregard for the truth.”
Elizabeth Locke, a Washington defamation lawyer who represents, among other clients, Sarah Palin in a suit against the Times, argued that in too many libel cases, ordinary citizens have been defined as public figures, and she complained that a number of journalistic practices, such as relying on sources known to have biases, do not meet the actual malice standard. “The press has run amok because there are zero consequences for its conduct,” she said. But Locke’s problem seems to be less with the ruling than with its application. If a plaintiff’s lawyer can’t convince a judge or jury that her client is not a public figure, that’s not the fault of Times v. Sullivan.
As to whether individual states should decide what constitutes libel, consider the origins of Times v. Sullivan. The case arose from an advertisement placed in The New York Times in 1960, calling for contributions to a defense fund for Martin Luther King Jr. and lambasting police and politicians in Montgomery, Ala., for their violent suppression of civil rights protesters. There were several small errors in the ad (for example, King had been arrested four times, not seven) and L.B. Sullivan, then a Montgomery city commissioner, sued the Times for defamation — even though he was not named in the ad. In a trial presided over by a segregationist judge and an all-white jury, Sullivan was awarded $500,000, a stunning figure in those days, which prompted the Times to appeal.
As the inestimable Anthony Lewis writes in his history of the case, “Make No Law,” Sullivan’s was just one in a raft of lawsuits brought by Southern officials against several media outlets trying to cover the civil rights struggles. The Sullivan award “made it forbiddingly difficult to write anything about the realities of Southern racism in the 1960s without risking heavy damages for libel,” Lewis writes. Other Southern states followed suit. By the time the Supreme Court took up the Sullivan case, officials had brought nearly $500 million in libel actions against the press.
The effect, and the intent, of this strategy was to scare the national media off the civil rights story. Without the protections of Times v. Sullivan, it’s easy to imagine that some, perhaps many, states would revert to those chilling days, driving the press away from rigorous investigations of powerful public figures and acts. Or maybe that’s the idea.
Renée Loth’s column appears regularly in the Globe.