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Professional journalism groups reacted with alarm after Supreme Court Justice Clarence Thomas released an opinion Tuesday urging the high court to reconsider a landmark freedom of the press decision called New York Times v. Sullivan.

The Sullivan ruling generally shields reporters and news platforms from libel or defamation lawsuits provided they were acting in good faith. Though journalists believe that protection is essential, Justice Thomas said the high court was wrong to usurp the role of states in regulating libel.

“[Sullivan] and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Thomas’s opinion reads.

“We should not continue to reflexively apply this policy-driven approach to the Constitution,” Thomas added. “Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments.”

BakerHostetler’s Mark Bailen, who serves as outside counsel to the Society of Professional Journalists, found the timing of Thomas’s opinion unwelcome, given President Donald Trump’s adversarial relationship with the press.

“It certainly strikes a nerve for journalists and news organizations at a time when some in government have called the press ‘the enemy of the people,’” Bailen told The Daily Caller News Foundation. “It’s against this back drop that you now have a Supreme Court justice who is arguing in favor of eradicating one of the great protections for freedom of the press.”

Thomas’s opinion came as the Supreme Court declined to hear a defamation case from Kathrine McKee, an actress who accused the disgraced comedian and television star Bill Cosby of rape. After publicly leveling the accusation, McKee claims Cosby’s lawyers leaked a defamatory letter to discredit her with the press. An appeals court ruled against McKee in view of the Sullivan case.

Thomas agreed with the Court’s decision to deny review of McKee’s petition, but wrote separately to suggest Sullivan should be reconsidered. As such, Bailen said Thomas was needlessly attacking settled precedent.

“Justice Thomas agreed with the Court’s decision to deny review and acknowledged the question presented was fact-specific,” Bailen told TheDCNF. “As such, it was not necessary for him to address the Sullivan decision.”

The 1964 Sullivan decision arose after The New York Times carried an advertisement soliciting funds for Dr. Martin Luther King Jr. The bulletin contained several inaccuracies, though the racist conduct described was not directed toward any particular individual. Nonetheless, an Alabama city commissioner called L. B. Sullivan brought a lawsuit against the Times and won a $500,000 libel judgment, which the Alabama Supreme Court upheld.

On appeal to the Supreme Court, the justices reversed the Alabama ruling and announced that libel plaintiffs must prove that a disputed statement was made with “actual malice” — that is, the writer knew the statement was false, or acted with reckless disregard for the truth.

Justice William Brennan, who wrote the majority opinion, famously asserted that “erroneous statement is inevitable in free debate” and must be tolerated to provide “breathing space” for free expression.

The high standard Sullivan established insulates all but the most egregious misreporting from liability. Press freedom groups stress that the ruling protects good faith error while ensuring that genuine misconduct is still actionable.

“It’s deeply troubling that Justice Thomas has suggested the court revisit a settled precedent that serves the most fundamental goals of the First Amendment: encouraging and protecting wide-open debate about public issues, including criticism of public officials,” Katie Townsend, legal director for the Reporters Committee for Freedom of the Press, told TheDCNF.

“Supreme Court justices and judges across the country — appointed by both parties — have applied the ‘actual malice’ standard established in New York Times v. Sullivan for the last five decades, reflecting a national consensus that it’s both vital and necessary to protect free speech and our free press,” Townsend added.

Whatever its benefits for free expression, Thomas said the Sullivan decision does not correspond with the original meaning of the First or Fourteenth Amendments. In a crisp historical survey within the opinion, Thomas shows that public officials often secured libel judgments during and after ratification of the First and Fourteenth Amendments, which would mean the drafters never intended that the freedom of the press would trump most libel claims.

The justice also notes that libel was a crime in early American history, even where the statement in question was true — libels were generally prosecuted if they resulted in a breach of the peace.

All told, the Thomas opinion won a qualified endorsement from left-leaning Harvard Law School Professor Cass Sunstein, who wondered if the First Amendment really protects rapists from defamation lawsuits brought by victims.

“It is hardly obvious that the First Amendment forbids rape victims from seeking some kind of redress from people who defame them,” Sunstein said, referencing McKee’s lawsuit against Cosby.

“Thomas is right to point out that the constitutional foundations of New York Times v. Sullivan are not entirely firm,” Sunstein added. “New and creative thinking, designed to protect people from having their reputations shattered, is very much in order.”

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55 Comments

55 Comments

  1. MAC

    February 24, 2019 at 1:03 am

    I would suggest that the freedom of the press isn’t about writing the truth. But rather to print lies and falsehood to discredit a political opponent or adversary and that the only thing that matters is the end result. And having no proof to back it up is essential to sway public opinion……just like they do it in Communist Utopia.
    I say, print a knowingly false article, suffer the consequences. Anything else belongs on the opinion page.

    • Julia Schmidt

      February 24, 2019 at 1:26 am

      THAT MAKES SENSE AND REMOVES THE TEMPTATION TO DO WHAT THEY R DOING TODAY… WRITING
      ACCUSATORY ARTICLES WITHOUT ANY INVESTIGATION OR RESEARCH GATHERING OF FACTS JUST THEIR BIAS OPINIONS WHICH IS DESTRUCTIVE WHEN FALSE TO A PERSONS REPUTATION ET AL

      • Honor

        February 24, 2019 at 1:49 am

        Agreed 100%

    • Mary

      February 24, 2019 at 9:08 am

      I absolutely agree with you!

    • Randy

      February 24, 2019 at 5:59 pm

      Well said Mac and I totally agree with you. No more lies and fake allegations towards innocent people.

    • Oat 35

      February 24, 2019 at 8:34 pm

      Totally agree with your recommendation and hope it’s pursued to stop the false fake new journalism that’s going on.

  2. Mark Jones

    February 24, 2019 at 1:04 am

    Thou shall not bare false witness.

  3. Richard Cole

    February 24, 2019 at 1:04 am

    President Trump never said that the “press” was the enemy of the people. He did say that “fake news” was the enemy of the people.

    • Eric M.

      February 24, 2019 at 7:09 am

      @Richard Cole…You wouldn’t believe how many times I’ve had to remind people of this exact same thing. That includes people that claim to be conservative.

    • Laura Marie

      February 24, 2019 at 9:41 am

      Of course they spin it the way they want to, to keep their narrative going , but you are absolutely correct. He has been dealing with them his whole entire life, and all of a sudden is an enemy now because he’s the president and they don’t like him he’s mean blah blah blah no these are supposed to be journalist not activists! There definitely needs to be consequences for the made up lies and unfortunately the majority of the people believe them, but a lot are waking up. A lot of people are going to other sources like on the ground people that’s the one good thing about Facebook or YouTube we can get our news now straight on the ground no line. They might want to think about that the next time they write up a piece that they know is 100% fake. They can be replaced, and they slowly are being replaced.

  4. MAGA

    February 24, 2019 at 1:04 am

    Journalists are frightened because someone of eminence has spoken truth.
    Journalism is still dead and journalists need to go to jail for lying .

    • Laura Marie

      February 24, 2019 at 9:37 am

      !! They are no longer a journalist, they are more like activist, and cite sources that are normally 95% untrue. This causes many issues when people believe the stories offhand. The first amendment right is for free-speech absolutely, but that does not give you an excuse to lie and ruin peoples lives! It’s very sad in this day and age there is no more real journalism.

    • Dean Perry

      February 24, 2019 at 10:07 am

      The President should be jailed for lying as well…

      • Carol

        February 24, 2019 at 11:07 am

        And Hillary , FBI, Senator ,Congress for lying ! Who in Washington doesn’t lie?

      • Phyllis

        February 24, 2019 at 11:53 am

        Every time the fake news comes out with an accusation, they’re proved to be lying about President Trump! Try being informed, not just opinionated!

      • Nancy Hessler

        February 24, 2019 at 8:04 pm

        Whenever liberals say our President is a liar, I always ask ‘about what’?… They always, ALWAYS, at a lack for something substantial, bring up campaign promises that he hasn’t fulfilled….yet. Weak.

  5. John Isbell

    February 24, 2019 at 1:14 am

    Once again Justice Thomas’s sage advice boils the blood of evil doers. How lucky we are to have a man like him on our Supreme Court. Hats off to you Justice Thomas, and may your service to this country be long and fruitful!

    • FAST EDDIE

      February 24, 2019 at 11:36 am

      10-4

    • Randy

      February 24, 2019 at 6:02 pm

      Amen John Isbell. Justice Thomas is a wise man.

  6. LST

    February 24, 2019 at 1:25 am

    Whatever happened to the oath journalists had to make report only the facts? Either they no longer sd, or it simply means nothing any longer. Most of the media is grossly biased at best. Much thrives on total bullshit. Like CNN and MSNBC being the very worst offenders.

    • Dean Perry

      February 24, 2019 at 10:09 am

      There is no oath… you are thinking of doctors or Boy Scouts! LOL

      • Nancy Hessler

        February 24, 2019 at 8:08 pm

        And the hipocratic oath for doctors, “first, do no harm” is now being done away with, in the name of late-term and full-term abortion. Animals!

    • FAST EDDIE

      February 24, 2019 at 11:37 am

      What oath?

  7. Mary

    February 24, 2019 at 2:39 am

    Hold all the Journalists accountable for what they report
    Instead of passing Fake News to each other, they should be doing their research, send them to prison for Defamation of character.

  8. Tom

    February 24, 2019 at 2:56 am

    Its about time they became liable for what they print. The MSM has destroyed countless people with the lies they have printed with no recourse by the victims. All they have to say is we thought/beLIEve it to be true and get away with it. They need to be forced to print/televise the TRUTH or suffer the consequences.

  9. Unalienable

    February 24, 2019 at 3:21 am

    The press makes up stories, and accusations are reported as fact. If the Courts don’t understand , or ignore our Unalienable rights, then the people must step forward and exercise these rights against the courts , and its heretics.
    “ The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” Otherwise, these power hungry miscreants will continue to infest our government.

  10. James

    February 24, 2019 at 4:11 am

    I am not a law expert. In recent times where most of the media have spiraled out of control with disrespect, and disregard for elected officials. Most of all creating future monsters within our youth (damage already done). It is time that action be taken to get the respect back that this country was built on. Enough is enough.

  11. Peter Gaskin

    February 24, 2019 at 5:47 am

    The press have for to long been able to ruin people’ s lives with lies and never held to account and its time that changed since they have become a political arm of a government they spread miss information and lies and they should not be above the law if you have proof to back up your story then publish it but if you don’t and you print it just to defame someone the journalist the editor and the owner of the media outlets should all be allowed to be sued the leftist have even reached here in Australia they started a petition to get the government to not let conservative speakers in to Australia by saying they incite violence and of course many people in Australia have no idea of what really happens in America they are led to believe that conservatives are violent and attack people and they give hate speeches most Australian’s have no idea what really goes on in America they don’t know about politicians inciting violence against other politicians or officials and their families false accusations against respected justices but it is only if you think conservative Australian citizen do not know the slandering against respectable people in America because they only get lies from the leftist media and celebrity’s in America defame more people than anyone and they should be held accountable for their lies as well if they don’t have proof they have a platform to spread lies and not held accountable just like the media

  12. Peter Gaskin

    February 24, 2019 at 6:02 am

    The freedom of the press was meant to keep people honest but now its used as a tool to destroy people’s lives even when they no its not true they still write it because they know they can get away with it no one should be allowed to defame anyone without having proof the media do not do what they are meant to do report the truth with facts to back it up the press is no longer independent from one side of government how many times could they have been sued by Donald Trump his family and officials that are in his administration the media would be bought to their knees for their lies and would have to declare bankruptcy and that is what happens if anyone else does what they are doing and it should be corrected the rich and powerful are controlling the government but its taxpayers who pay politicians wages not the media what they receive from the rich donors probably never even gets reported when they do their taxes audit every politician all their bank records and their partners and any of shore bank accounts quite a few would be facing the courts for tax evasion especially democrats and Hillary Clinton would be the first

  13. Granny

    February 24, 2019 at 7:18 am

    Journalism was once know to give true options on the bases of what they found. Of course they were wrong at time and reported that they were. Now they report nothing but their on opinions, no research, no truth. They interview a person and print the opposite. They are a waste. They incite racism, hatred, lies, bulling, and worst of all drain our countryof respect. They need to be held liable for their actions. If they had to pay for their lies they would learn. Look at Don Lemon the truth could hit him in the face and he would lie, but the worst part is, this is condoned by the owner of company he works for.

  14. Annette Smith

    February 24, 2019 at 7:36 am

    For communists we call it propaganda. The media today do the same thing. Propaganda to influence mindset. No difference.

  15. J R

    February 24, 2019 at 8:16 am

    Very thin line here, but somehow journalists must be made to uphold the standards that the American people expect, demand and deserve.

  16. Moracle

    February 24, 2019 at 8:21 am

    Some object because they think the timing is not good…?

    The time is always right for making things Constitutionally right…

  17. David Dolan

    February 24, 2019 at 8:32 am

    It’s been long over due, these journalists think they can slander, defame and divulge Gov’t secrets with NO retribution. Well it’s time to holds these creeps hands to the fire and MAKE them honor a strict ethical reporting set of standards! We don’t need the obnoxious, belligerent types like the CNN’s Acosta. That’s not Journalism, it flat out slander.

  18. fred

    February 24, 2019 at 8:41 am

    I agree with FREEDOM OF THE PRESS..Howrver today too many reporters are hiding behind thei right in order to protect them from action for printing BOLD FACED LIES..there shouls be NO protection when the reporters use anymous or unsubstianted sources

  19. Sam

    February 24, 2019 at 8:52 am

    I have no respect for the so called joutnalist of today. The real press is gone.

  20. neo

    February 24, 2019 at 9:00 am

    Sounds like he is informing the media that their cloak of armor of being sued is about to be stripped from them,,,,gone are the days when they could print anything/do anything under the shield of “journalism” and the first amendment….I hope that gone are the days they would drag out the legal system until the offended was broke and no longer able to afford their attorney’s and had to drop their cases.

  21. Asisay

    February 24, 2019 at 9:17 am

    And there we have it! “It certainly strikes a nerve for journalists and news organizations at a time when some in government have called the press ‘the enemy of the people”, Said Mark Bailen! We all know that president Trump said that “fake news is the enemy of the people”! Yep, fake news right in the story proves this decision is a correct decision to make. Thank Mark for showing us the stupidity of the press.

  22. Laura Marie

    February 24, 2019 at 9:34 am

    If journalist would stop lying and using these “supposedly sources” then this would not be an issue. The first amendment right is for free speech yes, but not free to lie about people constantly through the press, and people are easily manipulated into believing these stories. That can cause real harm in real life! There definitely needs to be a line, and consequences for these suppose journalists, and there is a lot of them that do this ,and that no longer our journalist they are more like the fake national Inquirer times 100!
    I also have an agenda, making them more like activists than reporters which is extremely dangerous.

  23. Laura Marie

    February 24, 2019 at 9:44 am

    I’m sorry I’ve tried to write a comment a few times here and it’s not going through so I will repeat myself again. He’s supposedly journalist have gone way too far they do not post fax at all anymore along with their suppose it sources. They have become activists. I’m sorry there has to be a line yes we have free speech but we do not have the right to lie about people, and ruin peoples lives along the way i’m sorry I’ve tried to write a comment a few times here and it’s not going through so I will repeat myself again. He’s supposedly journalist have gone way too far they do not post fax at all anymore along with their supposedly sources. They have become activists. I’m sorry there has to be a line yes we have free speech but we do not have the right to lie about people, and ruin peoples lives along the way Because President Trump is mean. Blah blah blah there are also alternative ways to get our news now most people are going on the ground, now with Facebook live and YouTube. There are many people getting their news it that way instead of being fed a bunch of lies from a supposedly journalist with an agenda.

  24. Wes

    February 24, 2019 at 9:47 am

    Sadly today journalists opinions rise above true reporting of the news. It’s hard prove that a disputed statement was made with “actual malice” and that the writer knowingly disregarded the truth. But nonetheless any discerning person can see the repeatedly politically biased reporting by the certain mainstream media outlets and newspapers. Agenda driven perspectives should not free from libel when they do harm to people.

  25. Frank Campo

    February 24, 2019 at 9:55 am

    Good on you Justice Thomas. Make the media responsible for what they say and print. They have exceeded and taken advantage of the First Amendment.

  26. N

    February 24, 2019 at 9:57 am

    Swamp News, MSM=Fake News, Fox News.The Pravda Racists Divisive Commie news and their propaganda HATE machine at full throttle! They are destroying the country within! Prosecute these deep state traitors now, Pres Trump!

  27. Ron

    February 24, 2019 at 10:00 am

    I dont know, these “journalists” seem to have plenty of intentional “malace” in what they write, so libel should definitely be in play. They certainly should NOT have a carte blanc, “get out of jail” card.

  28. Brenda Torres

    February 24, 2019 at 10:05 am

    “In Good Faith” doesn’t mean in the ‘faith of the Journalist’ but the ‘faith of what’s right and what’s wrong, the truth and only the truth’….Journalist’s are guilty of Bias, and continually feed their Bias to the rest of the people!!! They should give us the News and let us Think for Ourselves!!!

  29. Sparky

    February 24, 2019 at 10:22 am

    Well if journalists get all the facts FIRST and then report they will have little to nothing to fear. As long as they report the actual facts at the time. There is actual malice taking place in the media and they need to be held accountable. They have reported on things they knew to be false but continued with the narrative instead. And that is actual malice!

  30. jrgolden

    February 24, 2019 at 10:36 am

    “You don’t know what you have until it’s gone.”

    Only dictators and myopic partisans welcome the silencing of independent journalistic voices. Judging from the tenor of comments on this thread I am reminded that art does imitate life:
    “This is how freedom is lost, to thunderous applause.”
    -Star Wars Revenge of the Sith

    “We’ve given you a Republic. If you can keep it.”
    -Benjamin Franklin

  31. Karen Le Seure

    February 24, 2019 at 10:52 am

    I was wondering when the Supreme Court Justices were going to intercede in the character assassination of whomever the media/leftist/democrats attack. They have no clue what ” in good faith” even means. This has gone on WAY too long. I can’t even remember when the last journalist actually reported facts that were not slanted either way. I firmly believe when ANYONE deliberately assassinates someones character, alters statements of truth to suit their own purposes or deliberately hide the truth, there should be a hefty prison term slapped on them!

  32. Gordon

    February 24, 2019 at 11:52 am

    Why should the press get a free pass on slander and liebel ? These printed “mistakes” are planned lies and obviously so. Clarence Thomas was dragged through it, convicted in the press, and found legally innocent. He has a true understanding that the press can say whatever rediculous, slanderous thing they want and fear NO CONSEQUENCES ! This must stop.

  33. cj

    February 24, 2019 at 1:29 pm

    Of course, the #FakeNewsMedia disagrees with this as they rarely, if ever, fact check their reports anymore. I agree with Justice Thomas. People should ALL be able to sue for Libel if the original reports were made without ANY version of TRUTH!!!!
    That old adage = Innocent until proven guilty= has disappeared in todays’ news reports.

  34. Rae

    February 24, 2019 at 4:06 pm

    Bravo Justice Thomas for point out the fine line between REAL journalism and politically driven fake news, which =’s slander & libel.

  35. MissD

    February 24, 2019 at 5:32 pm

    One smart MAN !

  36. abolishliberals

    February 25, 2019 at 12:19 pm

    Gasp! Do you mean that these Journalists will now have to actually do their jobs and give us the truth? Factual truth? no opinions dressed up like News stories? OMG! What will become of the Media as we know it if they suddenly, by law, had to only publish factual, true news stories and not fake news, hearsay, rumors and garbage that was never fact checked at all?

  37. Billie

    February 25, 2019 at 12:37 pm

    While I have utmost respect for Justice Thomas, I always have to look carefully whenever Cass Sunstein’s name comes up. This time he’s in agreement with Justice Thomas. I agree that no one, including the press, should be allowed to knowingly lie about anyone but we also must refrain from arresting someone for political differences. That would have to be explicit in any revision to the law.

  38. Tom Stark

    February 26, 2019 at 1:18 pm

    Perhaps what is needed is to make the standard that an “anonymous” source must be disclosed if failure to disclose would result in incarceration or financial loss or loss of employment to the individual libeled based on proven false information being provided.

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