Justice Clarence Thomas stunned court watchers last week when he went out of his way to urge his fellow jurists to reconsider New York Times v. Sullivan, 376 U.S. 254 (1964), a cornerstone of First Amendment jurisprudence for more than five decades. In McKee v. Cosby, 586 U.S. ____ (2019), the U.S. Supreme Court unanimously declined to review a defamation case against comedian Bill Cosby filed by a woman who claimed that he raped her and who went to the press with her accusation. Lower courts ruled that the case should be dismissed under Sullivan, which generally makes it difficult for public figures to prevail on such claims, including those who gain notoriety only “for a limited range of issues.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974).

Although the Court did not issue an opinion in McKee, Justice Thomas wrote a rare concurrence in denying certiorari. He agreed that the Court should not wade into the “factbound question” at issue (i.e., whether the plaintiff was a limited-purpose public figure), but went on to argue that Sullivan, in a more “appropriate case,” should be rejected as unsupported by the original meaning of the First Amendment. Id. at 2.

So what did the Court hold in Sullivan, and what role does Justice Thomas see the First Amendment playing in defamation cases, if any?

The “actual malice” standard

In March 1960, the New York Times published a full-page advertisement describing an “unprecedented wave of terror by those who would deny and negate” the constitutional rights of those in the civil rights movement. 376 U.S. at 256-257. The advertisement described several disturbing events, some of which contained what were indisputably false statements. Id. at 258. A city official in Montgomery, Alabama who claimed to be implicated in those false allegations sued the newspaper for libel. Id. Although the official prevailed in Alabama state court, the U.S. Supreme Court reversed.

In an opinion by Justice William Brennan, the Court recognized the “general proposition that freedom of expression upon public questions is secured by the First Amendment,” and viewed the “case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. at 269-271. The Court then held that the First Amendment (as applied through the Fourteenth Amendment) limits the power of States in awarding damages in defamation actions “brought by public officials against critics of their official conduct.” Id. at 283. Specifically, the Court held that the constitutional guarantees of the First Amendment “require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice‘ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-280 (emphasis added).

The “actual malice” test was later extended by the Court to non-official public figures (Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)), including limited-purpose public figures (Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)). As the Court later recognized in justifying this test, “even though falsehoods have little value in and of themselves, they are nevertheless inevitable in free debate . . . and a rule that would impose strict liability on a publisher for false factual assertions would have an undoubted ‘chilling’ effect on speech relating to public figures that does have constitutional value.” Hustler Magazine v. Falwell, 485 U.S. 46, 52 (1988) (internal quotation marks and citation omitted).

Justice Thomas rejects Sullivan

In McKee, Justice Thomas urged his colleagues to abandon Sullivan and its progeny as “policy-driven decisions masquerading as constitutional law.” 586 U.S. ____ (2019) (Thomas, J., concurring), p. 2. With the “original meaning” of the First and Fourteenth Amendments as his lodestar, Justice Thomas’s concurrence surveys libel law at the time those amendments were ratified and finds no support for the “actual malice” test. Instead, it maintains that those constitutional amendments “did not abrogate the common law” that was in place at the time. Id. at 11.

In harkening back to a time before Sullivan, Justice Thomas presents a legal landscape that modern First Amendment practitioners would find disorienting. For example, he notes that when the First Amendment was ratified, “a defamed individual needed only to prove ‘ a false written publication that subjected him to hatred, contempt, or ridicule,” with malice “presumed in the absence of an applicable privilege, right, or duty.” Id. at 6. While the common law provided a privilege to comments on public questions and matters of public interest, that privilege applied “only when the facts stated were true.” Id. at 8. Instead of increasing a public figure’s burden in defamation actions, “the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels.” Id. at 7. Moreover, libel was a crime, and “truth traditionally was not a defense to libel prosecutions.” Id. at 7.

While Justice Thomas did not advocate returning to this perspective as a matter of policy, he found that “[s]tates are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” without the constraints imposed by a standard of “actual malice.” Id. at 14.

Where do things go from here?

Sullivan is not going anywhere until a majority of the Court decides to limit its scope or overrule it altogether. While no other Justices joined Justice Thomas, his views might find resonance in leaders who have a say in the Court’s future, including those who would “open up our libel laws” and decry “fake news.”

For more than a half-century, Sullivan has encouraged robust political debate by allowing States to punish false statements about matters of public importance only when a speaker knows that they are false or recklessly disregards the truth. It is difficult to imagine how the clock could be rolled back at this point to allow States to penalize a broader swath of speech, how state-by-state rules would even function in the Internet-age, and how those changes would affect our national discourse. But, only time will tell whether our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open” remains intact.