Justice Clarence Thomas called for the U.S. Supreme Court to overturn the landmark 1964 New York Times v. Sullivan ruling, which protects news organizations from most libel suits when they write about public figures.
Adding to a list of far-reaching positions he has taken on constitutional questions, Thomas wrote Tuesday that the New York Times ruling and follow-up cases “were policy-driven decisions masquerading as constitutional law.”
Thomas’s position aligns him at least to some degree with President Donald Trump, who has called for overhauling the country’s libel laws to make it easier to sue.
Thomas, 70, has long stood out for his willingness to discard decades-old legal assumptions. In 1992 Thomas questioned whether the constitutional ban on cruel and unusual punishment applied to prisoner abuse. In 2004 he wrote that the Constitution’s prohibition on government establishment of religion restricts only federal officials, not the states.
Those positions stem from Thomas’s view that the original understanding of the Constitution should guide today’s application of it.
The New York Times ruling says that news organizations and other speakers can’t be sued for defaming a public figure unless they act with “actual malice.” The case involved an advertisement seeking donations for Martin Luther King’s legal defense and criticizing police tactics used against civil rights protesters.
Thomas, a 1991 appointee of President George H.W. Bush, said Tuesday the reach of defamation law was a matter for the states.
“We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” he wrote. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”
Thomas’s 14-page opinion accompanied a Supreme Court order that refused to revive a defamation lawsuit against entertainer Bill Cosby. The suit was filed by Kathrine McKee, who said Cosby defamed her in the course of denying her allegations that he raped her decades ago. Cosby was convicted of sexual assault last year in a separate case.
Trump, who frequently attacks the news media as dishonest, called for a “strong look at our country’s libel laws” in January 2018 after the publication of a book depicted him as an inept leader of a dysfunctional White House.
During his campaign in February 2016 Trump said a rally, “We’re going to open up libel laws and we’re going to have people sue you like you’ve never got sued before.”
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