Justice Clarence Thomas renewed his call on Tuesday for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment to make it more difficult for public officials to prevail in libel suits.
Justice Thomas wrote that the decision had no basis in the Constitution as it was understood by the people who drafted and ratified it. He added, quoting an earlier opinion, that it “comes at a heavy cost, allowing media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’”
Justice Thomas has been the subject of a series of news reports raising questions about whether he had violated ethics rules. The reports said he had failed to disclose gifts and trips from Harlan Crow, a Texas billionaire who has donated to conservative causes.
The Sullivan decision and ones that followed it require public figures suing for defamation to prove that the defendant had acted with “actual malice.” The phrase is a legal term of art and does not connote the ordinary meaning of malice in the sense of spite or ill will.
Instead, to prove actual malice a plaintiff must show that the defendant knew the disputed statement was false or had acted with “reckless disregard.” That second phrase is also a term of art. The Supreme Court has said that it requires proof that the writer entertained serious doubts about the truth of the statement.
Justice Thomas has been a longtime critic of the actual malice standard, and Tuesday’s opinion returned to earlier themes, quoting earlier opinions. The Sullivan ruling and ones elaborating on it, he wrote, “were policy-driven decisions masquerading as constitutional law” with “no relation to the text, history or structure of the Constitution.”
In 2021, Justice Neil M. Gorsuch added his voice to the criticism of the decision. He wrote that much had changed since 1964, suggesting that the actual malice doctrine might have made more sense when there were fewer and more reliable sources of news, dominated by outlets “employing legions of investigative reporters, editors and fact-checkers.”
Justice Gorsuch added, “What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
Justice Thomas’s latest opinion came in a case brought by Don Blankenship, a former coal company executive and Senate candidate in West Virginia. He sued several news organizations for calling him a felon after he was convicted of conspiracy, a misdemeanor, in connection with the aftermath of a mine explosion.
The U.S. Court of Appeals for the Fourth Circuit ruled against him, saying he had not cleared the high bar required by the Sullivan decision.
“Some of the statements may have been the product of carelessness and substandard journalistic methods,” Judge Roger L. Gregory wrote for a unanimous three-judge panel. “But at the end of the day, the record does not contain evidence that the commentators and journalists responsible for the statements were anything more than confused about how to describe a person who served a year in prison for a federal offense.”
The Supreme Court rejected Mr. Blankenship’s request that it review that decision, without giving reasons. Justice Thomas concurred, saying the case was a poor vehicle for deciding the fate of Sullivan because West Virginia law also required Mr. Blankenship to prove actual malice to prevail.
“In an appropriate case, however,” Justice Thomas wrote, “we should reconsider New York Times and our other decisions displacing state defamation law.”