“Count to Five:” Why Clarence Thomas’ interest in relitigating Times v. Sullivan isn’t going anywhere fast

The editor of the Democrat-Reporter in Linden, Alabama published an editorial in which he called on the Ku Klux Klan begin night rides against “Democrats in the Republican Party and Democrats (who) are plotting to raise taxes in Alabama.”  This became the biggest freakout moment of the day Tuesday for journalists, journalism professors and anyone with a vested interest in media, until Supreme Court Justice Clarence Thomas pulled a “Hold my beer” moment.

Thomas, writing for himself only in a concurring opinion, stated that Supreme Court should reexamine the 1964 decision in New York Times v. Sullivan, in which the court held that a public figure had to prove actual malice in order to win a libel suit:

He said the decision had no basis in the Constitution as it was understood by the people who drafted and ratified it.

“New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote.

Thomas’ writing involved the court’s decision to reject an appeal from Kathrine McKee, one of the women who accused Bill Cosby of sexual assault. She claimed she had been libeled because Cosby’s lawyer called her dishonest. As a public figure, the court held that Sullivan applied and thus she had to show actual malice had occurred.  (Sullivan is one of the most important free-press decisions ever issued by the court as it makes it much harder for public figures to use libel laws as a sword instead of a shield. For a good synopsis of the facts on Sullivan, you can go here. If you want to read the whole decision, you can go here.)

About six seconds after news of Thomas’ statements on Sullivan emerged, journalism folk in all of my social media feeds began mildly to seriously panicking over what this could mean. My first two thoughts were:

  1. Clarence Thomas? The last time I thought about him at all was when I got excited to see Wendell Pierce playing him in an HBO film about the Anita Hill controversy. (To be fair, Pierce probably played Thomas better than Thomas plays himself.)
  2. This guy is shit-talking the Warren Court on a 9-0 decision? That’s like me calling out LeBron James based on basketball talent. Also, although unanimous decisions are the norm on the Roberts Court, it’s hard to imagine it running the table on a decision as crucial as Sullivan.

To get something like this rolling, Thomas would need to find four other justices to see the law the way he does in this area, which is a tall order. Still, the idea that something this important could be undone by someone this unimportant bothered me, so I asked media-law expert Daxton “Chip” Stewart to give me a sense how worrisome this bit of news is.

“First thought, it’s nothing to freak out about because Thomas has always been like this,” Stewart said via email. “(Former Justice Antonin) Scalia famously hated Times v. Sullivan, but he knew he couldn’t get a majority to go along with him, so he gave up trying to kill it. Thomas isn’t so shy. Remember, he wrote a separate concurring opinion in the Bong Hits 4 Jesus case to say that Tinker was wrongly decided and students have no free speech rights. The guy is no friend to the First Amendment rights that the Court has recognized over the past century.”

Stewart said even though no one sided with Thomas in his decision, the question of what this means going forward will depend on how the rest of the judicial system reacts.

“The most important thing about this Thomas opinion is that nobody else joined it,” he said. “He’s out on a limb. The potential problem is that it opens up a window for other aggrieved anti-media judges to think that maybe overturning Sullivan is in the realm of possibility or at least legitimate legal discussion. They’re already doing the same thing in Roe v. Wade — appellate court judges boldly rejecting it as precedent, saying it was wrongly decided and it’s time for the Supreme Court to overturn it. That flies in the face of the entire notion of stare decisis.

Thomas is also floating a trial balloon to see if any of the new appointees think this is an idea worth pursuing. The Times pointed out in its coverage today that both justices Brett Kavanaugh and Neil Gorsuch haven’t stridently opposed the Sullivan ruling, with Gorsuch saying during his confirmation hearing that he relied on Sullivan during one of his prior rulings.

Stewart said it is possible that both men could lean more toward President Donald Trump’s idea of “opening up the libel laws” and thus shift their stance on this issue. He also noted that Justice Samuel Alito is a “wild card,” but that Chief Justice John Roberts “cares too much about SCOTUS legitimacy and precedent to burn it on something as small (to him) as press freedom.”

“So the big risk would be if another Trump appointee were to come on in the seat of one of the liberal/moderate wing of the court (Ginsburg, Kagan, Breyer, Sotomayor) and join up an anti-media bloc of Thomas, Gorsuch, Kavanaugh, and maybe Alito,” he said. “Then there’s five votes to undo Justice (William) Brennan’s historic opinion in Sullivan.

“And as Brennan famously said, the most important thing for a justice to be able to do is to count to five.”


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