Clarence Thomas Wants to Trash ‘New York Times v. Sullivan’: What That Means for a Free Press

The United States Supreme Court on June 27 avoided a case that could have proven disastrous for freedom of the press, specifically for the media’s ability to report critically on powerful and influential people—but Justice Clarence Thomas was not at all happy about it. The case, Coral Ridge Ministries Media v. Southern Poverty Law Center, had worried media law experts because it would have allowed SCOTUS to potentially throw out one of its landmark free-press precedents, New York Times v. Sullivan.

That’s exactly what Thomas wanted the court to do. Instead, the other eight SCOTUS justices refused to "grant certiorari" (that is, to hear the case) and Thomas wrote a three-page dissent explaining why he wants the court to “reconsider” the “actual malice standard” set by the Sullivan decision in 1964, and which has only been expanded by the court in decisions ever since. 

It wasn’t the first time Thomas called for the court to “revisit” Sullivan. But the difference in 2022 is that the court has a 6-3 majority of conservative justices that, as in its decision overturning the abortion-rights decision Roe v. Wade, has shown a willingness and even an eagerness to reverse long-standing precedents.

What is New York Times v. Sullivan?

The 1964 New York Times v. Sullivan decision was handed down at the height of the civil rights movement, about seven months after Martin Luther King Jr. delivered his historic “I Have a Dream” speech. But the events that led to the decision took place in the movement’s earlier days when on March 29, 1960, the Times published a full-page advertisement paid for by civil rights groups to raise money for King’s defense fund. King had already been arrested seven times by that point.

The ad contained a series of allegations of police abuse against civil rights demonstrators in Montgomery, Ala. Most of the allegations were true, but at least one statement—that police had “padlocked” a college dining hall filled with protesters “in an attempt to starve them into submission”—was false.

Though the ad did not name him, or any specific individuals who allegedly committed these offenses, Montgomery’s elected commissioner of public safety—a man named L.B. Sullivan—concluded that the text of the civil rights ad referred to him, and that the falsehood it contained injured his reputation. He sued the ad’s publisher, The New York Times, and won. A court awarded him $500,000 in damages (about $5 million in today’s money). The Alabama state supreme court upheld the lower court’s verdict. So the Times took the case to the U.S. Supreme Court, who heard oral arguments starting on Jan. 6, 1964.

What the SCOTUS Decision Said, and Why It’s Important

When it handed down its decision two months later, SCOTUS stated that under the First Amendment guarantees of free speech, the United States was committed to keeping public debate on issues of the day “uninhibited, robust, and wide-open,” and that such “uninhibited” debate might not always be nice. In fact, it “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” 

“Uninhibited” and “caustic” debate and attacks may sometimes contain errors of fact, the court acknowledged. Sometimes those errors affect an individual person in a harmful way. “The interest of the public,” however, is more important than the interests of any one individual, the court ruled.

But the court wasn’t willing to let any false statement go unpunished.

So it singled out false statements that were made with what the court called “actual malice,” which is a legal term meaning that the person or publication making the false statements either knew they were false and published them anyway, or failed to make a reasonable effort to find out whether the statements were true or not. That is, according to the decision, they have shown “reckless disregard” for the truth.

Before Sullivan, libel and defamation law was left primarily to the states, which tended to follow the centuries-old English legal tradition. In that tradition, the burden of proving that a supposedly libelous statement was true was entirely up to the person making the statement. The person who claimed to be defamed didn’t have to prove anything. Sullivan flipped that tradition on its head, but only in cases involving people classified as “public figures.”

Now, the responsibility to prove truth or falsity, or “actual malice,” belonged entirely to the person making the accusation of defamation.

Under Sullivan, the news media has considerable freedom to report on, and investigate, powerful people and controversial issues without worrying that they could lose a lawsuit over an inadvertent factual error. But that hasn’t stopped numerous public figures from trying to sue. And Thomas in his dissent wants to make it easier for them.

What Is Thomas’s Problem With Sullivan?

Starting in his 2016 presidential campaign, and continuing through his time in office,  Donald Trump repeatedly called U.S. libel laws a "sham", demanding they “open up,” and promising to “take a very, very strong look” at those laws. Since Trump began making those statements, Thomas has written three separate opinions calling for Sullivan to be overruled.

In 2019, the Supreme Court turned down an appeal from Kathrine McKee, who had alleged that comedian Bill Cosby sexually assaulted her. McKee then sued Cosby for defamation after his lawyer called her a liar. Though Thomas concurred with the majority, he wrote his own opinion saying that libel suits were much easier back in the days when the Constitution was being written, more than 200 years earlier.

Thomas’s opinion said that the country should return to the way it was back then, when each state could decide what constituted libel.

“We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” Thomas opined, referring to the Sullivan case. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”

Social Media and Libel: Gorsuch Joins Thomas

In a 2021 case, the court declined to hear a case in which the son of Albania’s former prime minister claimed that a book, Arms and the Dudes: How Three Stoners From Miami Beach Became the Most Unlikely Gunrunners in History, falsely linked him to illegal weapons sales.

This time, Thomas was joined in his dissent from the court’s denial by another justice, Trump appointee Neil Gorsuch. The two justices seemed less worried about the gun-running allegations than they did about the explosion of misinformation on social media. The justices said that the contemporary internet landscape required a reevaluation of Sullivan.

Thomas took the opportunity to take a shot at the “actual malice” standard, which he said was invented by the court out of whole cloth.

“This court’s pronouncement that the First Amendment requires public figures to establish actual malice bears ‘no relation to the text, history or structure of the Constitution,’” Thomas wrote, quoting appeals court Judge Laurence Silberman, who also launched an attack on Sullivan.

Revisiting ‘Actual Malice’: Thomas Hasn’t Given Up

Once again in 2022, the majority of the court skirted the Sullivan issue by refusing to hear a case in which a Christian fundamentalist group known for its anti-LGBTQ views sued the Southern Poverty Law Center (SPLC)—which monitors right wing extremism in the U.S.—for labeling it a “hate group.” 

The Coral Ridge Presbyterian Church had a long history of anti-gay statements and activities. The group’s founder endorsed the work of another anti-LGBTQ group, the Chalcedon Foundation, whose publications call for the execution of gay people for engaging in homosexual acts. The church’s founder also published his own newsletter that included pictures of children with such captions as “Sex With Children? Homosexuals Say Yes!”

Nonetheless, Coral Ridge claimed that its designation as a hate group by the SPLC was defamatory and had cost the church money by getting it banned from Amazon’s “Smile” program, which allows customers to direct donations to nonprofits, but which bans hate groups.

In its petition, Coral Ridge argued that the Sullivan “actual malice” standard "no longer acts as a bulwark to protect civil rights." Rather, “actual malice” has become "a sword used to bludgeon public figures with impunity while hiding behind this Court's mistaken view of the First Amendment,” the church’s lawyers said. And Thomas agreed—though the majority turned the case away without comment.

"This case is one of many showing how New York Times and its progeny have allowed media organizations and interest groups 'to cast false aspersions on public figures with near impunity,'" Thomas wrote in his dissent, again quoting Silberman.

Thomas called the “actual malice” standard “almost impossible” for plaintiffs in defamation suits to meet. And while it is true that very few public plaintiffs have won lawsuits in the Sullivan era, Thomas’s repeated prodding of the court to reconsider the rule may pay off, according to a report by the Brennan Center for Justice, in upcoming lawsuits by the voting machine company Domin­ion Voting Systems Inc.

The company is suing two media companies, Fox News and One America News Network, for their repeated false reports that Dominion had somehow deliberately altered votes to steal the 2020 presidential election for Joe Biden. 

“Defam­at­ory misstate­ments about persons or compan­ies can do far more finan­cial and repu­ta­tional damage today than they could in 1964 given the reach of cable news and inter­net audi­ences,” wrote Brennan Center Fellow Ciara Torres-Spelliscy. “The series of outrageous claims about Domin­ion’s voting machines could well make new case law and provide the Supreme Court a chance to artic­u­late which types of lies about elections are action­able.”