Supreme Court Justice Clarence Thomas on Tuesday called for a re-evaluation of The New York Times Co. v. Sullivan, a landmark First Amendment case that established the “actual malice” standard for proving libel in court.
Thomas claimed that the court’s 1964 conclusions “were policy-driven decisions masquerading as constitutional law.”
“We should not continue to reflexively apply this policy-driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments,” Thomas argued in an order relating to a case involving the disgraced comic Bill Cosby.
He suggested the court take up the libel issue once again in some future “appropriate” case.
(The Cosby suit centered on a defamation claim brought by one of the women who say he assaulted them; the court declined to take it up.)
The libel standard was settled on when a lawsuit brought by Montgomery, Alabama, police commissioner L.B. Sullivan trickled up to the highest court. He took offense to a full-page ad published by The New York Times in 1960 that accused his department of suppressing civil rights activism.
While most of the content in the ad was accurate, some statements were false. Lawyers for the newspaper argued that the ad was protected under the First Amendment and not intended to ruin Sullivan’s reputation.
The Supreme Court unanimously ruled in favor of the newspaper, writing that in order to prove libel, it must be shown that the statements in question were made with “actual malice.”
As the court defined it: “that is, with knowledge that it was false or with reckless disregard for the truth.”
Thomas rejected that conclusion, arguing, as he usually does, for a strict interpretation of the Constitution.
“Although the Court held that its newly minted actual-malice rule was ‘required by the First and Fourteenth Amendments’ … it made no attempt to base that rule on the original understanding of those provisions,” he said.
Thomas argued that at the time those amendments were ratified ― in 1791 and 1868, respectively ― “the common law of libel … did not require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages.”