Justice Clarence Thomas has suggested rolling back a major Supreme Court case that protects newspapers from harassing lawsuits from politicians. That would make Donald Trump very happy.
In his continuing quest to take American law backward to a time when the powerful gleefully held sway over everyone else, Justice Clarence Thomas has now called for the Supreme Court to revisit a landmark libel decision.
And it just happens that if this decision were reversed, it would be much easier for people like Donald Trump to silence critics by filing lawsuits.
Back in 1964, a unanimous Supreme Court held that public figures had a higher bar to clear if they wanted to win a libel suit. The case, New York Times Co. v. Sullivan, originated during the Civil Rights movement and involved an advertisement published in the Times decrying police actions against civil rights demonstrators in Montgomery. The ad contained some errors and exaggerations.
Although Sullivan wasn't named in the advertisement, he was partly in charge of the police in Montgomery. So he sued, alleging that the Times had libeled him — published something they knew was false — by running the ad.
During the civil rights movement, Southern politicians routinely sued newspapers, hoping that they could blunt the coverage of the movement. Sullivan's lawsuit wasn't born out of some noble impulse or from being wronged. It was a tactical move to ensure civil rights leaders didn't get widespread exposure.
The Times argued that if they were required to rigorously examine every possible claim made by someone else about a public official, which Sullivan was, discourse about government officials could be shut down altogether. Rich and powerful people could latch on to a minor error in a story and use that to functionally hound a newspaper out of business.
In ruling for the Times, the Court created a new standard for libel of public figures. It said that someone who is a public official had to show that the publisher acted with "actual malice": publishing something either with clear knowledge it was false, or with "reckless disregard" for the truth.
This standard protects newspapers and allows public discourse, particularly about politicians, to thrive.
This has been a relatively uncontroversial view for decades. Even Justice Neil Gorsuch, an ultra-conservative Trump appointee, said at his confirmation hearing that it was settled law.
But Clarence Thomas wants to drag us back to a time when it was easy to sue people and libel was actually a crime.
Why? Because that's how things were in the late 1700s.
Thomas' view, were it to prevail, would make Donald Trump's dreams come true. Trump declared on the campaign trail in 2016 that if he were elected, he would "open up" libel laws so it would be easier for him to "sue them and win lots of money." Trump specifically named the New York Times and the Washington Post as newspapers he would go after.
Trump has often smeared both of those papers since becoming president. He's bizarrely tried to demand that the Washington Post register as a lobbyist, and has threatened to sic the IRS on the Post when it published something he didn't like. Trump goes after the Times on Twitter routinely, calling it "failing and corrupt" and calling one of their reporters a "Crooked H flunkie."
Trump's hostility to the media is unique in its vitriol, even compared to Nixon. Given a chance, there's every reason to believe Trump would fully embrace tyranny and shut down media outlets that he didn't like.
Apparently, Clarence Thomas would like to help him do just that.
Published with permission of The American Independent Foundation.