Supreme Court Justice Clarence Thomas recently found himself in a flurry of headlines after expressing criticism about the landmark New York Times Co. v. Sullivan decision.
Justice Thomas’ comments came in a concurring opinion after the Supreme Court refused to hear an appeal by one of Bill Cosby’s accusers, Katherine McKee. In her suit, McGee alleged Cosby, through his attorney, defamed her after sending a letter to news outlets attacking her credibility and personal affairs. The First Circuit dismissed McKee’s lawsuit finding she voluntarily “thrusted” herself into the public eye, becoming a limited purpose public figure and inviting public scrutiny to the credibility of her allegations. Absent a showing of actual malice—that is with knowledge that the statement is false or with reckless disregard of whether it is false or not—by clear and convincing evidence, a limited purpose public figure cannot recover under a defamation claim, applying the New York Times standard.
Justice Thomas described the New York Times standard as “almost impossible” to satisfy as it relates to the classification of limited purpose public figures and public figures. Specifically, reevaluating the First and Fourteenth Amendment, Justice Thomas argues, “If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.” He further contends that the rule defined in New York Times is “largely a judge-made rule of law” citing Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 501–502 (1984).
Criticisms of defamation laws are growing increasingly popular on social media and from our current administration. The president has previously weighed in on the state of our libel laws calling it a “disgrace” and suggesting that the laws as written do not provide a “meaningful recourse in our courts.” However, we cannot specifically reevaluate the New York Times opinion without examining the historical context.
An advertisement that appeared in the New York Times in 1960, titled Heed Their Rising Voices, discussed the mass demonstrations of African Americans occurring throughout the south and the resistance they faced from officials. The advertisement in support of Dr. Martin Luther King included signatures from prominent figures including Nat King Cole, Harry Belafonte, Jackie Robinson, and Eleanor Roosevelt. Anthony Lewis, a Supreme Court reporter who covered the landmark case, admitted in his book Make No Law, “No one could have guessed that the advertisement would test the right of Americans to speak and write freely about the state of their society. No one could have guessed that it would become a landmark of freedom.” But indeed, it did.
Objectively looking at New York Times today, an advertisement that did not mention Sullivan’s name and later contained a disclaimer that “an advertisement does not constitute a factual news report” was used to award what was the largest libel award in Alabama history. The case was filled with calculated moves and hardships. From the addition of the four Alabama pastors as defendants to destroy complete diversity for federal jurisdiction, to a state judge who was not shy about supporting segregation, to the selection of an all-white male jury in Alabama, and questionable jury instructions, the New York Times had all the odds stacked against it. It was no surprise when, after two hours and twenty minutes of deliberation, the jury awarded Sullivan the full amount. “Sullivan’s real target was the role of the American press as an agent of democratic change. He and the other Southern officials who had sued the Times for libel were trying to choke off a process that was educating the country about the nature of racism and was affecting political attitudes on that issue,” says Lewis.
Ultimately, Justice Brennan and the Supreme Court concluded that the advertisement, “as an expression of grievance and protest on one of the major public issues of our time,” qualified for constitutional protection. In essence, the decision allows the press to publish unpopular opinions and simply get it wrong at times without facing the fear of million-dollar judgments.
The significance of Justice Thomas’ concurrence in McKee is that we are in a decisive time in our country regarding the press. Journalists today have faced increasing scrutiny about inaccuracies, which some have now dubbed “Fake News.” With breaking news being delivered in a tweet, it is easier now more than ever for journalists to simply get it wrong. This raises two questions: (1) should there be a more relaxed standard for public officials rather than actual malice, and (2) would doing so create a chilling effect? These questions may soon have answers if courts do what Justice Thomas urges, which is reconsideration of jurisprudence in this area.
In the end, Justice Thomas seems to go a step further than just arguing for a more relaxed standard; relying on common law, he deems libel against public figures, “if anything, more serious and injurious than ordinary libels.” His concurrence provides momentum for critics of New York Times and room for courts to reexamine the standard, as the press continues to face increased scrutiny.
Natasha Cooper is an associate attorney for McGuireWoods LLP’s Atlanta, Georgia, office.