Justice Clarence Thomas published an opinion on Tuesday announcing that he would completely rewrite the law of defamation — potentially to such a degree that journalists could be subject to criminal prosecutions for making truthful claims that embarrass the subjects of their reporting.
Thomas’ opinion concurring in his court’s decision not to hear McKee v. Cosby is an attack on New York Times v. Sullivan, a seminal Supreme Court decision “that prohibits a public official from recovering damages for a defamatory falsehood” unless they can show that the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” No other member of the Court joined Thomas’ opinion.
New York Times involved an Alabama lawsuit that tried to impose crippling costs on the venerable newspaper after it published an advertisement seeking support for the Civil Rights Movement and Dr. Martin Luther King, Jr.’s legal defense. The ad contained some factual errors, some of which were quite minor — it claimed, for example, that Southern officials arrested Dr. King seven times, when in fact he’d only been arrested four times.
Due to these errors, an Alabama police commissioner won a $500,000 jury verdict against the Times. The Supreme Court reversed this verdict, holding that the Times did not publish the ad with reckless disregard of whether it contained false statements.
Thomas, however, objects to the New York Times decision because, he claims, it does not apply “the First Amendment as it was understood by the people who ratified it.”
The bulk of Thomas’ McKee opinion recites harsh libel laws that existed under the old common law of libel. To prevail in a civil suit, Thomas writes, “a defamed individual” typically only “needed only to prove ‘a false written publication that subjected him to hatred, contempt, or ridicule.’” The question of whether the person who published that statement did so recklessly was largely irrelevant.
In criminal cases, moreover, the standard was almost laughably draconian. “Truth traditionally was not a defense to libel prosecutions,” the justice writes. “The crime was intended to punish provocations to a breach of the peace, not the falsity of the statement.” Thus, a journalist (or anyone else with a platform, for that matter) could face criminal prosecutions even if their reporting is 100 percent accurate.
Thomas concludes his opinion by suggesting that federal courts should remove all limits on state libel laws. “The States,” according to Thomas, “are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”
As an historical matter, Thomas is probably right that the framers and their contemporaries did not understand the First Amendment to require the rule announced in New York Times v. Sullivan. But the same could be said about virtually any Supreme Court decision interpreting that amendment.
As no less an authority than Judge Robert Bork — the failed Supreme Court nominee and godfather of the conservative originalist movement — once wrote, “the framers seem to have had no coherent theory of free speech and appear not to have been overly concerned with the subject.” Nearly all modern First Amendment law is judicially constructed. Originalist sources are often useless when trying to determine how to read this amendment.
One area of First Amendment law that is judicially constructed is the Supreme Court’s decision in Citizens United v. Federal Election Commission, which permitted corporations to spend unlimited money to influence elections. As Delaware Chief Justice Leo Strine writes in a 2016 law review article co-authored with his former law clerk Nicholas Walter, Citizens United‘s holding that corporations enjoy such First Amendment rights is difficult to square with the original understanding of that amendment.
As of the Founding, there were no business corporations operating under so called general corporation statutes. Rather, the only extant business corporations were specifically created by legislatures with detailed charters that their managers were obligated to follow with fidelity. The ultra vires doctrine forced corporations to strictly adhere to the powers, activities, and ends detailed in their charters. Someone with a much closer view to the historical context than any current Supreme Court Justice, the Chief Justice of the United States in 1819, wrote in his decision in the Dartmouth College case that “[a] corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence.” As an originalist matter, therefore, it was impossible for the First Amendment to generally accord business corporations broad expressive rights because the understanding at the time was that corporations only had the rights specifically granted in their charters, and that corporations were not in any way persons like actual human beings.
Thomas is an enthusiastic supporter of Citizens United. Indeed, Thomas wrote a separate opinion in Citizens United arguing that his court did not go far enough — and that it should have also struck down laws requiring political donors to disclose those donations.
Justice Thomas, in other words, insists on rigid adherence to the original understanding of the First Amendment when the primary beneficiaries of existing doctrine are journalists. But he takes a very different view when the primary beneficiaries are wealthy donors and the sort of politicians who win elections thanks to wealthy donors. Thomas’ originalism is an originalism of convenience. And it aligns perfectly with the interests of America’s most famously illiberal politician.
President Donald Trump, after all, pledged to “open up our libel laws” so that he can sue journalists who write articles he deems to be “negative and horrible and false.” New York Times prevents politicians like Trump from doing so. If Thomas’ view were to prevail, however, Trump would be able to seek out a state with laws favorable to his interests and sue journalistic outlets into oblivion.