Freedom of the press is a pain in the ass for public officials and celebrities, because the damn liars in the media keep saying things that make them look bad. But in US America, we have this nice thing called the First Amendment, which was handed to George Washington by Jesus along with the rest of the Constitution in a well-documented public ceremony. According to no end of Supreme Court decisions, the First Amendment protects the media from lawsuits by public figures, because a vigorous public debate is far more important than the hurt fee-fees of a president or even a movie star. But Donald Trump has been complaining for years that he'd LOVE to "open up" America's libel laws so he could sue people who say mean things about him.
Good luck with that, Russiaboy! But Trump must be dancing around his Executive Time in his burger-stained jammies today, because yesterday, Clarence "Scalia's Bitch" Thomas wrote in an actual legal opinion that he thinks it's high time the Court reconsider the whole idea of what protected speech is, because shouldn't we all remember that it's actually still 1791 as far as Constitutional Truth goes?
In a 13-page concurring opinion that no other justices joined, Thomas called on the Court to reconsider the landmark 1964 case Times v. Sullivan, which has governed pretty much all considerations of defamation cases involving public figures ever since. For a nice detailed 'splainer of what Sullivan was all about, see this piece in, of course, the New York Times. The tl;dr version is that to be able to sue over an inaccurate news report, a public figure doesn't just have to show that a thing was untrue or in error. Instead, they need to prove that the writers knew a statement was factually inaccurate and that they deliberately went ahead and published it anyway. It's a big freakin' deal.
Well! Thomas is not impressed, because, you see, in deciding Times v. Sullivan, the Court completely failed to adhere to the fiction of "originalism," which requires all courts to pretend they can read the minds of the Founders to accomplish whatever modern rightwing goals they want. Yesterday's particular case involved Kathrine McKee, one of the women who accused Bill Cosby of sexual assault. She wanted to sue one of Cosby's lawyers for saying she was dishonest, but the Supreme Court held that, under Sullivan,McKee became a public figure when she came forward with her accusation against Cosby, and her lawsuit hadn't proven the lawyer had lied with reckless disregard. McKee had appealed the finding that she was a "public figure" at all, but courts have all said sorry, you are, so no lawsuit.
In his concurring opinion, Thomas agreed the Court had applied the Sullivan standard accurately, but then turned around and said courts shouldn't have to apply Sullivan at all because Sullivan was judicial overreachy cacadoody.
Elsewhere, Thomas took his fun assertion of originalism even further, accusing all courts since 1964 of making up a bunch of fake rights for the press and disregarding the extremely limited wording of the First Amendment, which doesn't have a single word about public figures or "actual malice" in it AT ALL.
We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.
Over at the Daily Beast, legal affairs columnist Jay Michaelson scoffs quite convincingly at Thomas's "originalism on steroids," pointing out Thomas's attempt to invoke the jurisprudence of the 18th century relies, like young George Washington who could not tell a lie, on a hell of a lot of cherry picking, and perhaps some impulsive chopping, too.
In Thomas's opinion, he duly lists about a dozen examples of how libel against public figures was a crime in the 18th century.
But he also acknowledges that there were strict limits on that crime, how the "public conduct of a public man" was indeed exempted from prosecution, and how several statements made by James Madison and other Founders suggest that the First Amendment right to freedom of the press does, indeed, require allowing newspapers to print allegations which turn out to be false.
Thomas decides that, on balance, the First Amendment can't really protect publishers in the ways Sullivan requires, but nah, there's nothing "objective" about his insistence that some 1791 sources should carry more weight than others, because for fuckssake "originalism" is a rhetorical game, not a damn science. And ignoring the real-world consequences of rolling back Sullivan's protections for the sake of an imaginary principle would be pretty bad, says Michaelson:
To call this a "chilling effect" on the free press is a massive understatement. No newspaper could report on as-yet-unproven but credibly sourced allegations—regarding Russian kompromat against our president, for example, or regarding sexual harassment allegations against a Supreme Court Justice (or two). For better or for worse, the entire industry of entertainment journalism, which focuses on the private lives of public figures, would simply cease to exist, since anything damaging and false could be prosecuted.
Michaelson isn't saying the courts should just go around enacting policy, because sure, that's not their job. But when it comes to interpreting the law, courts should "inquire into the real-world consequences of their decisions, in 2019 rather than 1791," because if there's nothing in the Constitution about the treatment of "public figures," there's also nothing in there about the courts being bound by "original intent." And yes, there are very real threats to free speech out there.
A guarantee of freedom of the press is meaningless if wealthy individuals can stifle legitimate discourse regarding public figures. Just ask Gawker.
Just for the sake of enjoying his own protections under Sullivan, Michaelson notes, again, that it's perfectly cromulent to wonder about the motives of a Supreme Court justice who thinks maybe the press is a little too free:
Suppose I were to speculate that Thomas has a specific interest in protecting the private lives of public figures because of his own very public debacle in 1991, when he was accused of sexual harassment by a former employee, Anita Hill. [...]
I don't know whether this highly personal motivation is behind Thomas's opinion. But it's a valid question to ask, since it is germane to the reasoning of a Supreme Court justice in a high-profile case.
Yet if Times v. Sullivan were overturned, such speculation could be impossible. Which maybe is what Thomas really wants. If I'm still allowed to say that.
Well played, sir. Here, have a Diet Coke.
[CNN / NYT / Daily Beast]
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