« Judicial Dignity | Main | The Litigation on the National Emergency Declaration »

Tuesday, February 19, 2019

Thomas calls for reconsideration of NYT v. Sullivan

In a solo opinion concurring in denial of cert in a defamation action brought by one of the women who accused Bill Cosby of sexual assault. It is typical Thomas fare--rejecting a precedent as an improper judicial policy choice that should be reexamined in light of history, convincing to no one else on the Court. But do not be surprised if it makes its way into a presidential tweet as part of his plan to "open up" libel laws--overruling Sullivan is the first, necessary step to that end.

In the final paragraph, Thomas writes "We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified." But this seems like a rhetorical cheat. The Free Speech Clause was not incorporated against the states under the Fourteenth Amendment until 1925. So, to the extent time matters, it took less than 40 years for the Court to begin meddling in this area, a shorter period of time.

Update: Someone reminded me of an additional point. Another reason that the Court did not use the First Amendment to limit defamation until 1964 was because it was not until 1960 that public officials in Alabama began an organized campaign to use big-money defamation lawsuits to stop the northern press from reporting about segregation and Massive Resistance to Brown, revealing the similarity between seditious libel and defamation when brought to bear by public officials in this context.

Posted by Howard Wasserman on February 19, 2019 at 12:07 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink


@ Brad 6:57. Not hypocritical at all. Blackstone recognized low value categories of speech that were without protection, which included libel. See Commentaries on the Laws of England.

Posted by: Anon | Feb 20, 2019 7:12:46 PM

I look forward to Justice Thomas revisiting the entirely-contrary-to-originalist take on First Amendment rights that animated the _Janus v. AFSCME_ majority opinion he joined.

Posted by: Joseph Slater | Feb 20, 2019 4:58:46 PM

I look forward to Justice Thomas revisiting the entirely-contrary-to-originalist take on First Amendment rights that animated the _Janus v. AFSCME_ majority opinion he joined.

Posted by: Joseph Slater | Feb 20, 2019 4:58:44 PM

It seems not-a-cheat (to me) to say that the almost-100-year gap between the ratification of the 14th Amendment and its use to displace state tort law at least cuts against the Court's conclusion in NYT v. Sullivan. But . . . probably water under the bridge.

Posted by: Richard Garnett | Feb 20, 2019 4:27:22 PM

This is pretty hypocritical. The entirety of the Court's free speech jurisprudence is incompatible with originalism. If Thomas wants to be an originalist on free speech, he'll be left with the prior restraint doctrine.

Are we really to believe he is going to repudiate the entirety of his campaign finance and commercial speech lines of opinions? Not to mention Reed v. Town of Gilbert just four years ago.

Posted by: brad | Feb 20, 2019 6:57:38 AM

On your "convincing to no one else on the Court," Justices can have reasons for not joining an opinion concurring in a denial of cert for reasons other than being unconvinced, or at least, other than positively disagreeing. (Are we to necessarily think that Sotomayor is the only member of the Court who thinks that whether denials of Rulemaking Clause challenges to criminal prosecutions are collateral orders subject to immediate appeal would be a cert-worthy issue in a petition that more cleanly presented it than the one whose denial she wrote a solo concurring opinion about today? I really doubt she is.) My suspicion is that Thomas doesn't spend time writing opinions on the cert docket about the incorrectness of the Court's precedent unless he thinks that some of his colleagues are at least persuadable. A lot of legal change has been successfully fomented by solo opinions concurring in the denial of cert.

I do think that people are right that Thomas would have to go back on a number of his prior positions in order to be a thoroughgoing First Amendment originalist, but he's done that before when he's come to the conclusion that his prior views were wrong as an original matter.

Posted by: Asher | Feb 19, 2019 6:16:58 PM

If you're going to reject the malice standard as a post-ratification policy determination, don't you also have to reject the Court's intermediate scrutiny and TPM doctrines?

Posted by: a non | Feb 19, 2019 5:28:28 PM

JT: The Constitution doesn't require malice. It was a policy decision the Court created 175 years after the adoption of the 1st Amendment. We don't have the authority to enact our policy preferences unless they are required by the Constitution.

HW: Well, the Court didn't feel a need to enact this policy until then.

JT: See above.

Posted by: Biff | Feb 19, 2019 4:43:27 PM

Interesting and really complicated. But not to forget, Justice Thomas here, presents also substantive arguments, not only historical ones ( or at least, such angel must be re-observed ). And to more than some extent, he is right. For, not only he states and proves clearly, that official figures, were also protected from libel and defamation statements ( historically ) but one should consider, that there is good reason for it. Here I quote him:

" Libel of a public official was deemed an offense " most dangerous to the people, and deserving of punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties "

End of quotation :

Now, not to forget, in the current case of Bill Cosby, I quote :

" McKee contends that Cosby's attorney responded on his behalf by writing and leaking a defamatory letter "

All that, may appear as retaliation for accusation for being allegedly raped by him, 40 year ago.

Now, if the issue stands on public figures, then I quote the concurring of Justice Black at the time ( in NYT v. Sullivan ) stating why the press should be given total immunity for defamation :

" This Nation, I suspect, can live in peace without libel suits based on public discussions of public affairs and public officials. But I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government,its actions, or its officials."

End of quotation:

But it goes on both sides. For, if that woman is considered as semi public figure ( for purposes of defamation ) then, by leaking such letter and spreading libel views, she would also be intimidated or deprived of her liberty. For without remedy, there is not liberty. A person ( no matter whether official or private ) would have to restrain his action, his statements, his firmness and dignity all due to strict fear of retaliation by the press, or other people.


Posted by: El roam | Feb 19, 2019 2:35:32 PM

The comments to this entry are closed.