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.