Justice Thomas Urges Review of the Seminal New York Times v. Sullivan Supreme Court Case

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By: Margaret Potter, Staff Writer


On February 19, 2019, Justice Clarence Thomas wrote a concurring opinion in McKee v. Cosby in which he urged the Supreme Court to reconsider its seminal decision in New York Times v. Sullivan.[1] In McKee v. Cosby, actress Katherine McKee sued comedian Bill Cosby, whom she accused of raping her in 1974, for defamation after Cosby’s lawyer released a letter accusing McKee of dishonesty which she claims damaged her reputation.[2] After the lower courts established McKee as being a public figure who was unable to prove Cosby acted with actual malice, she appealed to the Supreme Court.[3] The Court declined McKee’s appeal, upholding the lower court’s ruling.[4] In his concurrence, Justice Thomas supported the majority’s decision in declining McKee’s appeal but urged the Court to reconsider the holding in New York Times v. Sullivan.[5]

The Supreme Court in New York Times v. Sullivan ruled for a public figure to recover in a defamation claim they must prove the defendant acted with actual malice, meaning they disseminated false statements with knowledge or reckless disregard as to whether the statements were false.[6] Justice Thomas argues that the Supreme Court’s decision in this seminal case reflected “. . . policy driven decisions masquerading as constitutional law” and was not based on the Constitution in a way that would be understood by the founding fathers.[7]

In the 1960s, the civil rights movement was on the rise.[8] Advocates for the movement began marching to call for political action towards equality and bring national attention to police brutality, especially in the south.[9] Southern political officials began using libel laws to counteract the reporting of journalists endeavoring to inform the nation of brutality and inhumane policies enforced by government officials.[10] These efforts by southern officials was exemplified in the seminal Supreme Court case New York Times v. Sullivan in 1964.[11] Sullivan, the city commissioner in Montgomery, Alabama sued the New York Times for libel following their publishing of ads taken out by the civil rights movement which contained small errors.[12] The trial courts ruled in favor of the city commissioner, however on appeal the Supreme Court unanimously ruled in favor of the New York Times.[13] Through its ruling, the Court recognized the role of the First Amendment in defamation claims and the necessity to preserve “. . . a robust, public debate about the people and the policies of our government”.[14] In the Court’s opinion, Justice Brennan asserted that even untrue speech is integral to the public debate that exists in a free society in which citizens are afforded the freedom of speech through the First Amendment.[15] To protect the freedom of debate and preserve the First Amendment, the Court declared that for public officials to successfully recover in a defamation claim they must prove the high fault standard of actual malice.[16]

Supporters of the decision in New York Times v. Sullivan maintain that the ruling was the most important decision by the Supreme Court protecting the First Amendment in the twentieth century and secures the freedom of the press.[17] However, others like Justice Thomas disagree with the contention that the decision protects the First Amendment and hold that it is in direct contrast.[18] In his concurrence, Justice Thomas opined that the Supreme Court in 1964 had no business intervening in the state’s ability to draw the line in defamation claims and with the fault standard which plaintiffs must meet as they had prior to New York Times v. Sullivan.[19] Justice Thomas further opined that when the First Amendment was ratified by the founding fathers it allowed states to easily pursue libel claims, and therefore the actual malice standard established in New York Times v. Sullivan has no historical context with the First Amendment.[20] Thus, Justice Thomas concluded the Court must review the constitutionality of the 1964 ruling and lower the fault standard from actual malice in defamation claims brought by public officials.[21]

In a time where the vessels for publishing opinions has exponentially increased with the insurgence of social media, blogs, magazines, websites, television shows etc. one must wonder what a nation without the precedent set in New York Times v. Sullivan would look like. Sonja West, law professor at the University of Georgia predicts that if the fault standard for public officials was to be lowered it would become impossible for journalists and citizens to report on government officials with the scrutiny demanded by the people.[22] In countries that have lower fault standards in defamation claims, like Australia, those in power face little speculation because journalists are unable to scrutinize their decisions without fear of being sued.[23] However, others opine that overruling New York Times v. Sullivan would create a high standard of reporting and would incentivize reporters to be more meticulous with the truth.[24]

Although the Supreme Court declined to review New York Times v. Sullivan following Justice Thomas’ concurrence, Justice Thomas’s intended audience may not have been the Court but rather served as a signal to others to bring Sullivan based lawsuits.[25]






























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