Supreme Court Justice Clarence Thomas made a remarkable argument today, sliding in a fundamental rejection of a case that is central to the modern press’s protection under the first amendment. This is bad for pretty much everyone in journalism — everyone at Splinter, everyone at big-name outlets like the Post and Times, even the chuds at the Daily Caller.
During a concurring opinion on a Court decision connected to the Bill Cosby case, Thomas suggested that the Court should roll back precedent established in New York Times v Sullivan, a landmark case that established what public figures — like politicians — had to prove in order to win a libel case. The Court’s Times v Sullivan decision makes it very hard for officials like the notoriously litigious president to prevail in libel suits, forcing them to prove that the publication they want to sue knowingly and recklessly published something false.
This precedent is a core provision in how the free press functions today — it’s what keeps pretty much any publication that publishes pieces critical of the government from being buried in waves of lawsuits. And Thomas, one of the most conservative members of the court, is saying that he wants it gone.
In Justice Thomas’s view, the First Amendment did nothing to limit the authority of states to protect the reputations of their citizens and leaders as they saw fit. When the First Amendment was ratified, he wrote, many states made it quite easy to sue for libel in civil actions and to prosecute libel as a crime. That was, he wrote, as it should be.
“We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” Justice Thomas wrote of the Sullivan decision. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”
Thomas is known as a originalist, or someone who basically thinks the Constitution’s authors knew best and we shouldn’t mess with their wisdom. This would fit, of course, with his dislike of Times v Sullivan’s expansion of what the First Amendment actually protects. But as Slate’s Mark Joseph Stern put it in his great thread collecting some responses from other heavyweight journalists and putting this in more context, the point that Thomas is making about the states being able to protect freedom of the press is essentially bullshit.
What this would mean today is pretty obvious. The Post runs a story quoting anonymous Trump officials saying something damaging? Lawsuit. A publication reports on credible accusations against a public official that turn out to be false or misconstrued? Lawsuit.
This, of course, is something that Trump has already said he wants to do. The president is actively seeking the ability to sue the shit out of the free press, as it thus far has been somewhat of an impediment to people in his administration getting away with a ton of crimes. And now Thomas has given him at least one solid vote in the Supreme Court.
Trump appears to be putting weight behind the strategy of pushing cases toward the Supreme Court and hoping that his two seated nominees and the other three conservative justices on the Supreme Court will break landmark decisions his way if they vote along party lines. But fortunately for, well, pretty much everyone, that may not necessarily be the case. Chief Justice John Roberts has occasionally sided with the more liberal justices on the court, and the Times notes that both Gorsuch and Kavanaugh have expressed general support for the broader interpretation of libel protection in past cases. But it’s scary enough to know that the often-mute Clarence Thomas is ready to speak out in favor of silencing the free press, if and when it comes to that.