Justice Clarence Thomas is a self-isolating eccentric, but still, his latest move would have provoked head-scratching from legal analysts in normal times. Thomas chose to concur with a Supreme Court order dismissing a petition to rehear the facts of a libel case with a long and angry call for reversal of the Court’s main precedent governing such cases. He excoriated the line of decisions flowing from the 1964 New York Times v. Sullivan case as “policy-driven decisions masquerading as constitutional law.” So Thomas would get rid of the long-established principle that public figures have to establish “actual malice” to win libel suits, including but not limited to cases involving the press. It’s an odd move, but for the context.
Because the case involves the Bill Cosby litigation (the “public figure” in question was one of Cosby’s sexual-assault accusers, who was deemed by the lower courts to have become a “public figure” when she told her story to a reporter), and because the president of the United States has been very publicly chafing against constitutional restrictions in threats to regulate or ruin-by-litigation “enemy” media, Thomas’s opinion will get a lot of attention. Indeed, Trump preceded the archconservative justice in directly attacking the Supreme Court standard, most notably in January of 2018, as reported by the New York Times itself:
President Trump on Wednesday repeated a pledge to make it easier for people to sue news organizations and publishers for defamation, denouncing the country’s libel laws as a “sham” a day after his personal lawyer filed a lawsuit against a major media outlet, BuzzFeed News.
The salvo from Mr. Trump, who has long expressed hostility toward traditional press freedoms, followed a days-long effort by him and his team to undercut the unflattering portrayal of the White House in a new book by the writer Michael Wolff.
“We are going to take a strong look at our country’s libel laws, so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts,” Mr. Trump said during a public portion of a cabinet meeting in the White House.
Though less explicit than Thomas’s opinion, Trump’s blasts at press freedom were very much aimed at the Sullivan decision, which overturned an Alabama libel award against the New York Times for publishing an ad attacking that state’s racist public officials, as, well, racist public officials. The Court at that time made it clear that protecting freedom of speech and of the press required insulating critics of public figures from suits that might expose them to disastrous legal liability for debatable errors in facts published in good faith (particularly when, as in the Sullivan case, aggrieved parties could find sympathetic venues almost certain to support libel actions). The decision is often considered one of the greatest in recent Supreme Court history.
Media folk have naturally been jumpy about Trump’s hostility to press freedom, and manifest desire to use the courts to drown critics in litigation as he has famously done with business rivals over the years. So there will naturally be some overreaction to Thomas’s demand that Trump and other public figures get back their “right” to go after purveyors of what the president calls “fake news”:
That’s a bit of a reach, and after all, Thomas is often an outlier even on a conservative Court. But here’s guessing he’ll have one high-profile cheerleader in the White House.