20 Feb 19
The job of the Supreme Court, as conservative rhetoric has it, is to do nothing more than what is strictly necessary. Somehow this did not stop Clarence Thomas, the most assertively anti-modern of the justices, from putting out an opinion yesterday that by his own account went entirely beyond the bounds of what the court was deciding.
The court had simply declined to hear an appeal of a case in which Kathrine McKee, who said Bill Cosby had raped her, was trying to sue Cosby for defamation, because his lawyer had called her a liar. The lower court had ruled that McKee was a “limited purpose public figure” under existing First Amendment law, so that the letter didn’t qualify as defamatory, and Supreme Court chose not to reconsider whether she was a public figure.
“I agree with the Court’s decision not to take up that factbound question,” Thomas wrote. Nevertheless, instead of considering his Constitutional duties complete and going about his business, Thomas chose to keep writing about what he would like to decide, at some future date, “in an appropriate case.”
What he wants to do, he wrote, is to convince the court to throw out an entire half-century of First Amendment law, built on 1964’s New York Times v. Sullivan decision, on the grounds it is nothing but “policy-driven decisions masquerading as constitutional law.” The limits of libel should be set by the states and by 18th century common law—the latter of which, by Thomas’ account, protects the “‘core private righ[t]’ of a person’s ‘‘uninterrupted enjoyment of…his reputation'” without any exception for public officials.
By requiring a standard of “actual malice” for public figures to claim defamation, the Supreme Court got the original principles completely backward, Thomas wrote: “Far from increasing a public figure’s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels.”
In a particularly Clarence Thomistic turn, he made sure to rehash the particulars of Times v. Sullivan, in which the Montgomery, Alabama, commissioner of public affairs had sued the newspaper because of a full-page ad in the Times denouncing brutality against the civil-rights movement and the mistreatment of Martin Luther King, Jr., in Montgomery. The ad did not mention the commissioner, L.B. Sullivan, by name, but—unlike present-day officials, who shelter themselves from personal blame or liability for police misconduct—he claimed to be personally implicated.
A footnote from Thomas cited the facts that the advertisement had gotten wrong:
[T]he police did not “at any time” surround the campus when deployed near it; the dining hall “was not padlocked on any occasion”; the student protesters had not “refus[ed] to register” but rather “boycott[ed] classes on a single day”; “Dr. King had not been arrested seven times, but only four”; and the police “were not only not implicated in the bombings, but had made every effort to apprehend those who were.
Those errors were not enough to allow a public official to sue the press, the court ruled. Because of the public interest in freedom of speech, a publication could only be held liable if a statement against a public official had been published “with knowledge that it was false or with reckless disregard of whether it was false or not.”
This was, in Thomas’ view, contrary to “the original understanding of the First or Fourteenth Amendment” and it unnecessarily gave the federal government control over state law, when 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,” he wrote.
It was pure performance, a judicial-branch production of Donald Trump’s promise to “open up our libel laws,” the First Amendment equivalent of rolling coal. As such, it was received with horror by the normal members of the press and with delight by the Trumpists.
What was unclear was whether Thomas and his enthusiasts understood what their provocation really meant. Were they being cynical about truly wanting Times v. Sullivan repealed? Or were they being cynical about what they expected to happen if it were?
The truth is, if New York Times vs. Sullivan were done away with, the New York Times would probably not be first in line to suffer the consequences. It would be dangerous for the Times, but the Times does try, within the limits of its institutional ideology, to avoid printing news stories that are not true. Even in 1964, the thing that started all the trouble was an advertisement, not the paper’s own reporting. The conventions of the Times require it to write with politesse, to attribute judgments and criticisms to (sometimes invisible) third parties, to understate and write around the ugliest facts about public officials. It makes plenty of errors, and sometimes its coyness introduces new kinds of error, but it strives to make everything it does look defensible.
Clarence Thomas’ alternative vision of First Amendment law could, however, be extremely dangerous to people like his own wife, the professional right-wing activist Virginia “Ginni” Thomas. Ginni Thomas has very strong opinions about public figures, and very little visible concern about their uninterrupted enjoyment of their reputations.
In a December profile, the Washington Post rounded up some of her Facebook activity:
This month, Ginni Thomas shared a Facebook post that bizarrely described California as a war zone, with illegal immigrants scaling walls and carjacking U.S. citizens. Last month, she shared a post alleging that Democrats committed voter fraud in four midterm races. (Which ones? How? She didn’t say.) Then there was the post in August (since deleted) proclaiming that teenage survivors of the Parkland, Fla., school shooting are “dangerous to the survival of our nation” because of their gun-control activism. And the post in Februarythat harangued Barack Obama and Hillary Clinton for supposedly wiretapping Donald Trump — a baseless accusation indulged in only by conspiracy theorists.
Slate reported that she’s also shared posts accusing Robert Mueller of planning to “fabricate whatever fake scandals [are] needed to take down Trump” and linking George Soros to “a silent coup.”
Under Clarence Thomas’ standards, it’s hard to see why a billionaire—someone who has already had a bomb mailed to him by someone angry at what the press said about him—wouldn’t want to take people to court for suggesting he’s trying to overthrow the government. But under our post-Sullivan rules of political discourse, all of this is just robust expression of a political point of view.
Expanding the reach of defamation laws should be catastrophic for the conservative movement. The right-wing mediasphere is built on grievance and demonization. Saying Barack Obama was a foreign national with a plan to put citizens in FEMA camps might not have held up factually, point by point, in a court of law, but everyone understood it didn’t have to. Only on the outer edge, where Alex Jones eventually got himself in trouble by attacking the parents of murdered children, does that sort of thing carry legal risk.
This did not make the right-wing press noticeably wary of Thomas’ ambitions to overthrow defamation law. It’s possible that they understood there’s no genuine risk of it ever happening; it’s also possible that this simply extends the conservative belief that the law only exists to be used against their enemies. Defamation is not what Tucker Carlson or Project Veritas do, but whatever the regular press reports, if it makes right-wingers look bad. And the real winner in a world without Sullivan would be whoever has the most money and the desire to use lawsuits to hurt their foes.
So Mollie Hemingway, of the opaquely funded Federalist, tweeted her approval:
Media who just weeks ago gleefully libeled Covington children at the March for Life and who regularly push defamatory hoaxes to harm conservatives seem upset that libel laws that protect their credibility-destroying partisan political activity might be revisited
Hemingway then went back to tweeting about how Democratic politicians are in favor of infanticide.