Justice Clarence Thomas readdresses the libel laws and asks for a revision.
By Sterling Zoe Rubottom and Lauren Brewington
In a world where Artificial Intelligence, new gadgets and technology all enable users to transform a person’s face into the president or distort someone’s voice to say anything, one must wonder—what is really being done? How will people know what is fake and what is real, especially in the news?
In the past, libel laws protected citizens by illegalizing fake news. However, there’s one problem—people are saying the laws aren’t good enough. To be charged with libel, you must prove malice, not simply claim it.
This past Tuesday, Supreme Court Justice Clarence Thomas released a brief in an effort to persuade the Supreme Court to reconsider the 1964 landmark case.
The case, The New York Times v. Sullivan, established the actual malice standard. This standard requires proof that the offending statement was made with knowledge of its falsity or with disregard to its accuracy; otherwise, the libel suit would be unsuccessful.
“New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Thomas wrote.
However, Thomas believes the decision for the actual malice standard had no basis in the Constitution, because the people who drafted and ratified America’s fundamental principles, especially the First Amendment, had no understanding of how libel should be handled in a court of law.
After an Alabama Court ruled against The New York Times for a misprint, the Supreme Court ruled unanimously 9-0 in favor of The New York Times. The Supreme Court’s decision sought to protect newspapers, under the right to freedom of speech and press, even when they misprint, so long as the misprint was not maliciously intended. This decision set the precedent for debate on public issues, asserting that they should remain unrestricted—even if it comes at the cost of factual errors that may or may not damage a public official’s reputation.
Still, Thomas believes the First Amendment did nothing to limit the state’s authority in protecting the reputations of their citizens and leaders, according to The New York Times. 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.
He believes that is how it should be—states should have the authority to restrict free speech and press if either are harmful to citizens, regardless of intent, malicious or benign.
Thomas filed the brief in concurrence with a libel claim filed against Bill Cosby in the McKee v. Cosby case. The claim was denied.
Thomas also made a statement in accord with the court that had turned down an appeal from Kathrine McKee, who has accused Bill Cosby of sexual assault. She sued Mr. Cosby for libel after his lawyer said she had been dishonest. Thomas wrote that he agreed with the court’s decision.
“We should reconsider the precedents that require courts to ask [malice] in the first place,” he wrote.
“The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” stated Thomas. “We should reconsider our jurisprudence in this area.”
Although no other justices have come forward in support of Thomas’s brief, President Donald Trump has many times spoken out against the current libel laws.
“Isn’t it a shame that someone can write an article or book, totally make up stories and form a picture of a person that is literally the exact opposite of the fact and get away with it without retribution or cost,” tweeted Trump last September. “Don’t know why Washington politicians don’t change libel laws?”
Photo by Cicely Rubottom