US Supreme Court Justice Clarence Thomas on Tuesday called for the court to review its ruling in New York Times v. Sullivan, a libel case that challenged freedom of press protections.
Writing a concurrence to a denied petition for certiorari, Thomas argued that the current threshold for plaintiffs is “almost impossible” because:
Under this Court’s First Amendment precedents, public figures are barred from recovering damages for defamation unless they can show that the statement at issue was made with “actual malice—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
Following this decision, the court later expanded actual malice to include “all defamed ‘public figures,'” in Curtis Publishing Co. v. Butts, which then included private persons who “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”
This cumulatively generates a problem for plaintiffs like Kathrine McKee, who brought this petition against Bill Cosby, because current jurisprudence restricts potential protections and remedies against libel.
In his concurrence, Thomas explored how “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.” He further noted the potential for states to balance public discourse and reputational harm, but for this to be possible, the court would need to rethink its historic holding.