Justice Thomas wants the Supreme Court to revisit cornerstone of free speech law

Justice Thomas wants the Supreme Court to reconsider its holding in New York Times v. Sullivan, the 1964 landmark ruling that says public officials cannot sue people for libel unless they can prove actual malice motivated the speaker to utter falsehoods about him. Since Sullivan makes it almost impossible for public officials to bring libel actions, and it is the bedrock of political criticism in this country, Thomas' proposal would represent a dramatic change in consititutional law.

Justice Thomas issued his decision in McKee v. Cosby on February 19, concurring in the Supreme Court's decision not to hear a libel case brought against one of Bill Cosby's rape accusers. While Thomas agrees the Court shouldn't take this particular case, he uses this opportunity to lay out a roadmap for overturning Sullivan, which would make it easier for public officials to sue their critics if they got the facts wrong. Thomas' musings on the correctness of the Supreme Court's public figure libel law is consistent with his view that many constitutional issues must be decided in accordance either with what the framers had in mind when they drafted the Constitution in the 18th Century or what the the state of the law was at the time.

Sullivan holds that, to win their libel suits, public officials must prove the speaker got his facts wrong because of actual malice, a notoriously high burden of proof. Actual malice means more than a simple mistake in getting your facts wrong; it means reckless disregard for the truth, or the speaker is just making it up to hurt someone else.

As Justice Thomas sees it, the framers of the First Amendment did not intend to graft an "actual malice" standard into libel cases, and libel cases were not even constitutionalized until 1964, when Justice Brennan famously said the new standard in Sullivan was necessary to ensure robust political debate in the United States. Yet, Thomas says, Sullivan "and the Court's decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own 'federal rules' by balancing the 'competing values at stake in defamation suits,'" an approach that does not comport with the original meaning of the First Amendment, ratified at a time when public figures did not have to satisfy any heightened liability standard in order to win their cases. Back then, all public officials had to do was to prove the offending statement was false and "subjected him to hatred, contempt, or ridicule." As legal thinkers saw it back then, Justice Thomas says, libels against public officials were considered even more serious than libels against the common man, "because the people may be deceived and reset the best citizens to their great injury, and it may be the loss of their liberties."

Thomas' historical research does say that political critics did have "a privilege to comment on public questions and matters of public interest," which extended "to the public conduct of a public man" and to the character of public officials "so far as it may respect his fitness and qualifications for the office." But this privilege would not let all critics off the hook; the public official could still win the case if the facts were false, "and the privilege did not afford the publisher an opportunity to defame the officer's private character."

No other Justice joins Thomas' opinion, making him a lone wolf on reconsidering Sullivan. He does quote from the late Justice White's prior criticisms of Sullivan, even though White had joined the Sullivan opinion. Justice White apparently reconsidered support for Sullivan in his later years. While Thomas' opinion is a far cry from an actual Supreme Court ruling that would over turn a 50+ year of robust political criticism in the United States, were the Court to adopt his views on this issue (and I doubt it ever will), it would change political dialogue in this country forever.