Clarence Thomas REALLY Wants To Make It Easier For The Powerful To Sue People For Criticizing Them
As we've discussed before, Supreme Court Justice Clarence Thomas really does not like the actual malice" standard required to make a defamation claim against a public figure, as laid out in the extremely important NY Times v. Sullivan case. The actual malice standard confuses many people, because it's not actually about malice. The standard is that for there to be defamation of a public figure, it needs to be expressed while the speaker knows that the claims are false, or with reckless disregard" for whether it's true. And even the reckless disregard" part is often misunderstood. It's a much higher bar than simply being negligent. It means that that the speaker had serious doubts at the time of expression that the speech was false.
This standard has been a huge benefit for freedom of speech. Especially in an era when the rich and powerful use abusive SLAPP suits to drag critics into court with no hope of actually winning. Being able to highlight the lack of any evidence for actual malice has been tremendously helpful in getting many cases kicked out of court at the first opportunity.
However, this is exactly why some rich and powerful people are very much against that standard. And that's even though for years this was considered settled law, with almost no one challenging the standard at all. And then, in 2019 Clarence Thomas tossed out a bizarre hand grenade, in announcing that he thought it was time to revisit the actual malice standard. That has kicked off a series of strategic lawsuits with the goal of getting the Supreme Court to do exactly that. Things got slightly scarier last year when Thomas once again made the same argument, and this time got Neil Gorsuch to make a similar argument. Last year also saw Clarence Thomas' own mentor, DC Circuit Judge Lawrence Silberman pen an even more unhinged attack on the actual malice standard, which he claims only enables the mainstream media to be mean to his conservative buddies. He basically argues that if only we got rid of it, the media could be more like those awesome folks at Fox News, being nice to conservatives.
So, there had been some concern this week that the Supreme Court might grant the cert petition for Coral Ridge v. SPLC, a case that is attempting to take up Thomas on his offer to ditch the standard.
Thankfully, the court said no. But, it gave Thomas yet another chance to dissent and rant more about the actual malice standard... citing his mentor's unhinged rant in support.
I would grant certiorari in this case to revisit the actualmalice" standard. This case is one of many showing howNew York Times and its progeny have allowed media organizations and interest groups to cast false aspersions onpublic figures with near impunity." Tah, 991 F. 3d, at 254(opinion of Silberman, J.). SPLC's hate group" designationlumped Coral Ridge's Christian ministry with groups likethe Ku Klux Klan and Neo-Nazis. It placed Coral Ridge onan interactive, online Hate Map" and caused Coral Ridgeconcrete financial injury by excluding it from the AmazonSmile donation program. Nonetheless, unable to satisfythe almost impossible" actual-malice standard this Courthas imposed, Coral Ridge could not hold SPLC to accountfor what it maintains is a blatant falsehood.
About the only good thing you can say here is that Gorsuch, nor any of the other Justices, didn't sign on to Thomas' dissent or issued their own attacks on actual malice.
So, thankfully, for at least some time, this core 1st Amendment standard remains standing.
Of course, while we wait for Thomas to convince others, Congress could take action. Check that: Congress should take action. Congress can and should codify the actual malice standard in law. Hell, why not go crazy and not just codify the actual malice standard into law, but pair it with a strong, functioning federal anti-SLAPP law that would allow defendants dragged into court as an intimidation and speech suppression tactic to get cases kicked out of court quickly - and force the abusive plaintiffs to pick up the bill?