Justice Thomas has gotten some attention for his suggestion yesterday (in a concurrence in a denial of certiorari) that the Court should reconsider New York Times v. Sullivan. (The case, McKee v. Cosby, involves one of Bill Cosby's accusers suing Cosby's lawyer for defamation.) His main point:
I write to explain why, in an appropriate case, we should reconsider the precedents that require courts to ask [the question of "actual malice"]. New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own “‘federal rule[s]’” by balancing the “competing values at stake in defamation suits.” Gertz, supra, at 334, 348 (quoting New York Times, supra, at 279).
We should not continue to reflexively apply this policydriven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.
And from later on:
The constitutional libel rules adopted by this Court in New York Times and its progeny broke sharply from the common law of libel, and there are sound reasons to question whether the First and Fourteenth Amendments displaced this body of common law. …
The common law of libel at the time the First and Fourteenth Amendments were ratified did not require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages. Typically, a defamed individual needed only to prove “a false written publication that subjected him to hatred, contempt, or ridicule.” Dun & Bradstreet, supra, at 765 (White, J., concurring in judgment); see 4 W. Blackstone, Commentaries *150 (Blackstone); H. Folkard, Starkie on Slander and Libel *156 (H. Wood ed., 4th Eng. ed. 1877) (Starkie).
…
These common-law protections for the “core private righ[t]” of a person’s “‘uninterrupted enjoyment of . . . his reputation’” formed the backdrop against which the First and Fourteenth Amendments were ratified. Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 567 (2007) (quoting 1 Blackstone *129). Before our decision in New York Times, we consistently recognized that the First Amendment did not displace the common law of libel. As Justice Story explained,
“The liberty of speech, or of the press, has nothing to do with this subject. They are not endangered by the punishment of libellous publications. The liberty of
speech and the liberty of the press do not authorize malicious and injurious defamation.” Dexter v. Spear, 7 F. Cas. 624 (No. 3,867) (CC RI 1825).
A couple of competing reactions:
Will Baude at Volokh Conspiracy: Justice Thomas's Skepticism of New York Times v. Sullivan; First Amendment limitations on libel and other torts are complicated (concluding I don't think [overruling New York Times v. Sullivan] [i]s that likely to happen, but this isn't a crazy position.").
Noah Feldman (at Bloomberg), Clarence Thomas Attacks the Press, Contradicting … Clarence Thomas; His opinion calling to roll back a key libel law isn't really about originalism. Just read his earlier rulings. As the title indicates, this article is mostly a "gotcha" piece claiming that Thomas is inconsistent because Thomas hasn't used originalism in prior free speech cases. Professor Feldman argues:
[Thomas' opinion] is also a powerful reminder that the Supreme Court doesn’t and shouldn’t use originalism to address the freedom of speech — a reality that Thomas has reflected in his own non-originalist free-speech opinions.
Without getting to the merits of the New York Times case, I'd say that Professor Feldman reflects the simplistic idea that originalist judges must either use originalism all of the time despite precedent or never use originalism to question precedent. No originalist Justices think this way, and very few originalist scholars do either. Originalist Justices typically follow entrenched precedents unless one seems appropriate (for various reasons) for reconsideration. (As an aside, this is also true of nonoriginalist Justices: they follow precedent except when they don't.)
I'd be the first to say that originalist Justices need a somewhat better theory of when reconsideration is appropriate and when it isn't (actually I did say that here [part II.D] as to Justice Scalia). But it doesn't accord with any reasonable view of originalism to call it "contradict[ory]" to generally follow precedent in an area but to call for an originalist-based reconsideration occasionally. (And I'd also note that Justice Thomas commonly uses originalism in First Amendment opinions, including for example in Brown v. Entertainment Merchants [violent video games] and McIntyre v. Ohio Elections Commission [anonymous speech]).
Posted at 6:56 AM