Clarence Thomas has a point about free-speech law

By Cass R. Sunstein (A moderate Leftist)

WITH HIS stunning plea for reconsideration of New York Times v. Sullivan—the landmark free-speech decision insulating the press, and speakers in general, from most libel actions —Justice Clarence Thomas has ... performed a public service. Not necessarily because he’s right, but because there’s a serious issue here.

To see why, imagine that a lawyer, a blogger, a talk-show host or a newspaper lies about you, and in the process destroys your reputation. Your accuser might say that you are a pedophile, a drug peddler, an arsonist or a prostitute. In an hour, the lie goes around the world.

If you count as a public figure, does the Constitution really mean that the law cannot provide you with any kind of redress?

Thomas doesn’t think so. He was writing in a case brought by Kathrine McKee, who accused Bill Cosby of rape. Cosby’s lawyer responded to her accusation by trying to destroy her character. Among other things, he called her a liar. McKee brought suit, saying that she had been defamed.

Because McKee was involved in a public controversy, she counted as a public figure. Under New York Times v. Sullivan, decided in 1964, she could not win unless she could demonstrate that Cosby’s lawyer had “actual malice,” which means that he knew he was lying, or that he acted “with reckless indifference” to the question of truth or falsity.

It’s really hard to demonstrate that, so McKee’s lawsuit was bound to be dismissed.

Thomas is an “originalist”; he believes that interpretation of the Constitution should be settled by reference to the “original public meaning” of its terms. He offers considerable evidence that at the time of ratification, those who wrote and ratified the Bill of Rights were comfortable with libel actions—and did not mean to impose anything like the “actual malice” standard.

A defamed individual (including a public figure) needed only to prove that a written publication was false and that it subjected him to hatred, contempt or ridicule. And for 170 years, the Supreme Court never held that the First Amendment forbids the states from protecting people from libel.

Thomas concludes that New York Times v. Sullivan, and the many subsequent decisions implementing it, were “policy-driven decisions masquerading as constitutional law.”

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