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By Steve Vladeck, professor at the University of Texas School of Law

As part of his broader assault on the news media, President Donald Trump has repeatedly called for a revisiting of American libel law — part of the law of defamation, which governs when individuals can sue those who have allegedly made false statements about them. On Tuesday, he found a powerful ally in Supreme Court Justice Clarence Thomas, who penned an opinion encouraging his colleagues to revisit the court’s landmark 1964 ruling in New York Times v. Sullivan.

The Sullivan case is one of the most important Supreme Court decisions interpreting the First Amendment’s guarantee of freedom speech. By encouraging its demise, Thomas is not only proposing to arm Trump with a legal mechanism for going after his critics, he is also arguing that publicly criticizing public figures should come with far more risk. Although no other justice joined in his solo opinion, Thomas’s analysis suggests that Trump’s attacks on the press are resonating in some of the most important chambers of government — and will only embolden new lawsuits seeking to weaken Sullivan and the critical constitutional principle that it articulated.

Although no other justice joined in his solo opinion, Thomas’s analysis suggests that Trump’s attacks on the press are resonating.

The Sullivan decision came as part-and-parcel of the civil rights movement. On March 29, 1960, civil rights groups took out a full-page “editorial” advertisement in the New York Times criticizing unnamed authorities in Montgomery, Alabama, for violating the Constitution by abusing protestors and various other actions. L.B. Sullivan, a city commissioner, sued the Times, arguing that the advertisement defamed the reputation of the Montgomery police and included a few minor errors — such as suggesting that Dr. Martin Luther King, Jr., had been arrested seven times (as opposed to four). Alabama libel law at the time forced defendants to prove their statements were true, instead of presuming them true. Because the Times couldn’t prove that every statement in the advertisement was true, the jury ruled in Sullivan’s favor, and awarded $500,000 in damages.

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In a sweeping opinion by Justice William Brennan, Jr., the Supreme Court unanimously reversed this verdict. As Brennan explained, “we consider this 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.” It may also include errors, Brennan explained, because “erroneous statement is inevitable in free debate.” But to allow states to punish all errors in statements about the official conduct of public figures would be antithetical to the purpose of the First Amendment, because “[w]hatever is added to the field of libel is taken from the field of free debate.”

In other words, the Supreme Court believed that the extent to which the First Amendment shielded false speech about public officials was worth it compared to the far greater cost of chilling all Americans, and not just the press, from criticizing their government. This self-censorship was a natural outgrowth of the fear that even factually accurate criticisms could provoke costly litigation.

That didn’t mean that a public official could never successfully sue for defamation. As Brennan explained, there would be no First Amendment defense if the official could show “actual malice” on the defendant’s part — “that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” But the burden must be on the public official to demonstrate such malice, rather than on the defendant to show good faith.

Sullivan set forth a ringing defense of the right to criticize government officials and other public figures, even if it sometimes came at the expense of truth.

In the process, Sullivan set forth a ringing defense of the right to criticize government officials and other public figures, even if it sometimes came at the expense of truth. And although the decision’s protections were not limited to the press, it was no accident that what followed was far more active — and skeptical — press coverage of national events, from civil rights demonstrations to the Vietnam War to Watergate, and beyond. As one media law scholar noted in 2017, Sullivan “recognized that a free press, however imperfect, is the lifeblood of a healthy democracy, one in which journalists are both benefactors and beneficiaries of the First Amendment — protecting and relying on its freedoms to inform their communities and enable democratic participation.”

Thomas’s argument against Sullivan comes in a strange context — a civil suit against Bill Cosby by one of the women who accused him of sexual assault. The accuser, Kathrine McKee, claimed that Cosby’s attorney had, at Cosby’s behest, written and leaked a letter that defamed her reputation. The lower courts held that her claim could not proceed because McKee was a public figure under Sullivan, and she could not satisfy the “actual malice” standard. Thomas did not dispute the core issue in the case — whether McKee was properly held to be a public figure. Rather, he wrote to suggest that, in a different case, the court should revisit Sullivan itself, a “policy-driven decision[] masquerading as constitutional law.”

President Donald Trump shakes hands with Supreme Court Justice Clarence Thomas on the West Front of the U.S. Capitol on Jan. 20, 2017.Alex Wong / Getty Images file

At the core of Thomas’s argument is what he claims to be the original understanding of the First Amendment — that the law of defamation was almost entirely left to state legislatures and state courts, and the First Amendment did not create any special rules for cases involving public figures. Sullivan itself, though, highlighted the widespread and contemporary consensus that the deeply controversial Sedition Act of 1798 — which criminalized criticism of the federal government — was a violation of the First Amendment.

These critics of the Sedition Act were Founders themselves — James Madison, Thomas Jefferson, etc. So one can draw a straight line, as Brennan did, from hostility to the Sedition Act to the need for an actual malice standard for defamation against public figures. Thus, although Thomas may be right that “constitutional opposition to the Sedition Act... does not necessarily support a constitutional actual-malice rule in all civil libel actions brought by public figures,” it does underscore the broader point that the First Amendment protects, and has always protected, a right to criticize the government. Requiring public figures to demonstrate “actual malice” is merely the application of that right in the specific context of defamation law.

To be clear, no other justice joined in Thomas’s opinion, and none of the current justices have previously expressed similar misgivings about Sullivan. Thus, Sullivan may not be in jeopardy. But it’s impossible to disentangle Thomas’s opinion from the current political moment — from a president who has repeatedly attacked the media and derided as “fake news” coverage that is accurate but unflattering, has specifically railed against libel laws and has suggested the time is ripe to “open [the laws] up” so that when the press “write purposely negative and horrible and false articles, we can sue them and win lots of money.”

For a justice who has been on the court for 27 years, it is therefore an especially ominous moment to publicly suggest revisiting Sullivan — and troubling evidence that Trump’s efforts to weaken public support for our current libel regime, and for the right to criticize the government it enshrines, may well be working. Even at the highest levels of the judiciary.