DC: Professional journalism groups reacted with alarm after Supreme Court Justice Clarence Thomas released an opinion Tuesday urging the high court to reconsider a landmark freedom of the press decision called New York Times v. Sullivan.
The Sullivan ruling generally shields reporters and news platforms from libel or defamation lawsuits provided they were acting in good faith. Though journalists believe that protection is essential, Justice Thomas said the high court was wrong to usurp the role of states in regulating libel.
“[Sullivan] and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Thomas’s opinion reads.
“We should not continue to reflexively apply this policy-driven approach to the Constitution,” Thomas added. “Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments.”
BakerHostetler’s Mark Bailen, who serves as outside counsel to the Society of Professional Journalists, found the timing of Thomas’s opinion unwelcome, given President Donald Trump’s adversarial relationship with the press.
“It certainly strikes a nerve for journalists and news organizations at a time when some in government have called the press ‘the enemy of the people,’” Bailen told The Daily Caller News Foundation. “It’s against this back drop that you now have a Supreme Court justice who is arguing in favor of eradicating one of the great protections for freedom of the press.”
Thomas’s opinion came as the Supreme Court declined to hear a defamation case from Kathrine McKee, an actress who accused the disgraced comedian and television star Bill Cosby of rape. After publicly leveling the accusation, McKee claims Cosby’s lawyers leaked a defamatory letter to discredit her with the press. An appeals court ruled against McKee in view of the Sullivan case.
Thomas agreed with the Court’s decision to deny review of McKee’s petition, but wrote separately to suggest Sullivan should be reconsidered. As such, Bailen said Thomas was needlessly attacking settled precedent.
“Justice Thomas agreed with the Court’s decision to deny review and acknowledged the question presented was fact-specific,” Bailen told TheDCNF. “As such, it was not necessary for him to address the Sullivan decision.”
The 1964 Sullivan decision arose after The New York Times carried an advertisement soliciting funds for Dr. Martin Luther King Jr. The bulletin contained several inaccuracies, though the racist conduct described was not directed toward any particular individual. Nonetheless, an Alabama city commissioner called L. B. Sullivan brought a lawsuit against the Times and won a $500,000 libel judgment, which the Alabama Supreme Court upheld.
On appeal to the Supreme Court, the justices reversed the Alabama ruling and announced that libel plaintiffs must prove that a disputed statement was made with “actual malice” — that is, the writer knew the statement was false, or acted with reckless disregard for the truth.
Justice William Brennan, who wrote the majority opinion, famously asserted that “erroneous statement is inevitable in free debate” and must be tolerated to provide “breathing space” for free expression.
The high standard Sullivan established insulates all but the most egregious misreporting from liability. Press freedom groups stress that the ruling protects good faith error while ensuring that genuine misconduct is still actionable. more here
“If you are not publishing anything libelous you should not have anything to be worried about” – just like they say about gun regulations
let’s call it “Common Sense Hate Control”
“Justice William Brennan, who wrote the majority opinion, famously asserted that “erroneous statement is inevitable in free debate” and must be tolerated to provide “breathing space” for free expression.”
Bullshit. Erroneous statement should involve personal responsibility. Every Single Time. Know your facts, or refrain from putting forth falsehood.
Period.
Or “Common Sense Hoax Control”
“The media” have greatly changed since Times v. Sullivan, when people had at most three TV stations, their local paper or two, and maybe a subscription to the NYTimes, Wapo, the WST, and/or a “news magazine”.
The activist line of cases that started with Times v. Sullivan now protect an “industry” that journalists of fifty years ago would no longer recognize. Maybe a straight “negligence” standard is too loose, but perhaps we need to redefine who is a “public figure” in this day and age of internet, and apply a falsity standard that is something more than “knowledge of falsity or reckless disregard for the truth”. At the very least, it will force the propagandists to clarify that what they’re spouting isn’t based on established “facts” and that everything they are spouting is “opinion”.
I hope Justice Thomas lives to be 150 yrs old. I love that guy.
Newspapers are just people with a printing press. “The freedom of the press” doesn’t create an institution above the law it just means the government can’t censor or shut them down.
But they are just people like everyone else only they have a printing press. If those individuals spread scurrilous attacks they need to answer for it.
I see this with eyes to the case brought on by the Covington boys.
That “good faith” standard is what they don’t have as well as a reckless disregard for the truth.
Get their internal e-mails and text messages and they’ll be bankrupt from libel lawsuits.
We had a local gas station owner who would put up pro-Trump statements on an electronic sign below their gas prices and the local alt-media rag harassed their fuel supplier (Shell BTW) who then refused to sell to them.
As a result, they had no gas for about a month or two until they could find a new supplier while the media rag gloated about how they hoped they would go out of business.
Bad Faith Activists shouldn’t enjoy legal protections by hiding behind the 1st Amendment.
https://www.nashvillescene.com/news/pith-in-the-wind/article/20836967/lewis-country-store-jokes-about-donald-trump-grabbing-women
Thomas is correct. When the press becomes a strident political organ it should no longer function under the umbrella of those protections.
The people know the difference between innocent mistakes and malicious activism.
Abuse it, you lose it.
Why should what purports to be an “unbiased” group, tasked with providing factual information to the citizens, be granted special protections?
When a “news” organization becomes a blatant political arm of a party, the first amendment protection afforded them, moot.