Courts

Clarence Thomas *Really* Wants To Re-Write First Amendment Law

He won't rest till NY Times v. Sullivan is a thing of the past.

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President Bush Speals At Federalist Society’s Gala

(Photo by Aude Guerrucci-Pool/Getty Images)

Clarence Thomas is back on his bullshit. In this specific instance, we’re referring to his hobby horse that the Supreme Court should “reconsider” the landmark First Amendment case, New York Times v. Sullivan.

He’s written this before, most recently in a 2019 decision. And he’s still at in. Today in a concurrence denying certiorari in Blankenship v. NBC Universal, Thomas reiterated his position that the Court should “reconsider the actual-malice standard” in Sullivan. (The reason he concurred rather than dissented is that, in the Blankenship case “claims are independently subject to an actual-malice standard as a matter of state law.”)

But Thomas came hard for the caselaw that has become the backbone of modern American journalism.

The Court usurped control over libel law and imposed its own elevated standard in New York Times Co. v. Sullivan, 376 U. S. 254 (1964). It decreed that the Constitution required “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279–280. The Court did not base this “actual malice” rule in the original meaning of the First Amendment. It limited its analysis of the historical record to a loose inference from opposition surrounding the Sedition Act of 1798, see McKee, 586 U. S., at ___–___ (opinion of THOMAS, J.) (slip op., at 12–13), and primarily justified its constitutional rule by noting that 20th century state-court decisions and “the consensus of scholarly opinion apparently favor[ed] the rule,” New York Times, 376 U. S., at 280, and n. 20.

The good news, for proponents of the Fourth Estate, is that Thomas doesn’t (yet) seem to have enough colleagues on board to upend First Amendment jurisprudence. We know the current Court won’t let a little thing like stare decisis stop them from rewriting constitutional law according to their own preferred policy goals, see, e.g. Dobbs. So perhaps they just realize making it easier to sue the media means conservatives are also likely to be burned by that change in constitutional law.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.

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