Supreme Court Justice Clarence Thomas’ call to kick libel law back to the states is baffling and dangerous. In an era where the president of the United States routinely attacks the press, our landmark libel case, New York Times v. Sullivan, must remain a cornerstone of First Amendment law.
Thomas seems to be supporting President Donald Trump’s call to “open up” libel laws to make it easier to successfully sue media companies.
“We are going to have people sue you like you’ve never got sued before,” Trump said at a Fort Worth rally during the frenzied 2016 presidential primary season. His lawyers may have convinced him that this would be tough to do under Sullivan, hence his “enemy of the people” diatribes on Twitter.
The press is under attack from our highest political office and the far right, and in this contentious political climate, journalists must remain protected against a vindictive government bearing down on us via our legal system.
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In the landmark Sullivan ruling, the Supreme Court set a standard for actual malice that had to be met for press reports about public officials could be considered libel. Sullivan was birthed 55 years ago from civil rights-era conflicts as African-American leaders criticized police brutality against protesters in Alabama.
Without Sullivan, coverage of the protests in the South would have been squelched as southern public officials sought to use libel law as a cudgel to silence civil rights leaders and the reporters who covered them. Indeed, Sullivan was as much a civil rights case as it was a libel case.
Civil rights, Vietnam and Watergate reporting
How ironic then that Justice Thomas, the only African-American on the Supreme Court, is calling for a retreat on these civil rights-era protections. He made this remark in a concurring opinion released Tuesday when the court turned down an appeal from Kathrine McKee, who accused Bill Cosby of sexual assault. She sued Cosby for libel after his lawyers called her dishonest.
Thomas often treads his own path in the area of First Amendment law. He is a noted defender of advertising, also called commercial speech, questioning why it should be more heavily regulated than other types of speech, even political speech. He has questioned laws that regulate political contributions, and strongly supported less government regulation of street and lawn signs. However, he has opposed free speech protections for high school students and prisoners.
During the middle of the last century, the media and civil rights protesters often faced financially crippling libel suits filed by public officials and even police officers such as L.B. Sullivan of Montgomery, Alabama. The Supreme Court’s 1964 ruling in Sullivan cleared the way for more robust coverage of the Vietnam war and Watergate. The free press is compromised if it is not free to cover issues of public concern without fear of being hauled into court.
Journalists don’t always win libel suits
To be clear, journalists are not totally protected from libel suits, nor are we owed blanket immunity from reckless practice. For instance, Sen. Barry Goldwater, the 1964 Republican presidential nominee, prevailed in his libel suit against Fact magazine over “The Unconscious of a Conservative: A Special Issue on the Mind of Barry Goldwater,” which was published before the election.
The magazine contended that Goldwater had a severely paranoid personality and was psychologically unfit to be president. Under Sullivan, Fact editor Ralph Ginzburg was found to have acted with actual malice: knowledge that the content was false before he published it or with reckless disregard of whether the information was false.
Provable truth is the ultimate defense in a libel suit. According to our federal law via Sullivan, if reporters get it wrong, they can certainly lose a libel case. And that’s how it should be.
Aimee Edmondson, an associate professor at Ohio University’s E.W. Scripps School of Journalism, is the author of “In Sullivan’s Shadow: The Use and Abuse of Libel Law During the Civil Rights Movement,” to be published Aug. 2. Follow her on Twitter: @ProfEdmondson