At Bloomberg, Cass Sunstein (Harvard): Clarence Thomas Has a Point About Free-Speech Law –The constitutional foundations of New York Times v. Sullivan are not looking all that firm. From the introduction:
With his stunning plea for reconsideration of New York Times v. Sullivan – the landmark free-speech decision insulating the press, and speakers in general, from most libel actions – Justice Clarence Thomas has … performed a public service. Not necessarily because he’s right, but because there’s a serious issue here.
To see why, imagine that a lawyer, a blogger, a talk-show host or a newspaper lies about you — and in the process destroys your reputation. Your accuser might say that you are a pedophile, a drug peddler, an arsonist or a prostitute. In an hour, the lie goes around the world.
If you count as a public figure, does the Constitution really mean that the law cannot provide you with any kind of redress?
And from later in the post:
Thomas is an “originalist”; he believes that interpretation of the Constitution should be settled by reference to the “original public meaning” of its terms. Thomas offers considerable evidence that at the time of ratification, those who wrote and ratified the Bill of Rights were comfortable with libel actions – and that they did not mean to impose anything like the “actual malice” standard.
A defamed individual (including a public figure) needed only to prove that a written publication was false and that it subjected him to hatred, contempt or ridicule. And for 170 years, the Supreme Court never held that the First Amendment forbids the states from protecting people from libel.
Thomas concludes that New York Times v. Sullivan, and the many subsequent decisions implementing it, were “policy-driven decisions masquerading as constitutional law.”
There are strong objections to originalism, of course. But whatever your theory of constitutional interpretation, it is hardly obvious that the First Amendment forbids rape victims from seeking some kind of redress from people who defame them.
RELATED: At Constitution Daily, Lyle Denniston: Justice Thomas, originalism and the First Amendment.
Posted at 6:52 AM