Supreme Court’s Clarence Thomas attacks Times v. Sullivan in court opinion

Supreme Court Justice Clarence Thomas took the occasion of a defamation case against comedian Bill Cosby to call for a revisit of  the key free press decision, New York Times v. Sullivan. Thomas may be reacting to President Donald Trump’s assaults on the press or to recent press coverage of the Anita Hill incident. Law professor Steve Vladeck, NBC, February 20, 2019, writes that Trump’s criticism of the press is making strides since Thomas’s opinion will encourage new lawsuits to weaken Sullivan. Vladeck argues that “although Thomas may be right that ‘constitutional opposition to the Sedition Act… does not necessarily support a constitutional actual-malice rule in all civil libel actions brought by public figures,’ it does underscore the broader point that the First Amendment protects, and has always protected, a right to criticize the government. Requiring public figures to demonstrate ‘actual malice’ is merely the application of that right in the specific context of defamation law.”

Lyle Denniston, Constitution Daily, February 20, 2019, quotes New York Times’ Anthony Lewis about the importance of Times v. Sullivan: “Without New York Times v. Sulllivan, it is questionable whether the press could have done as much as it has to penetrate the power and secrecy of modern government, or to confront the public with the realities of policy issues.”

Law professor Marty Lederman, Balkinization, February 23, 2019, writes a critique of Thomas and his “originalist” argument used to pitch that the Supreme Court void Times v. Sullivan.