Does Judge Clarence Thomas want to overturn a landmark ruling on freedom of the press? | Laurence H Tribe and Dennis Aftergut

On Monday, tucked away in a busy news cycle, was a quiet, subtle, but no less terrifying judicial development. United States Supreme Court Justice Clarence Thomas laid out the formula for destroying the free press.

Thomas opposed the denial of certiorari in Coal Ridge Ministries Media v Southern Poverty Law Center with an opinion giving us more than a hint of what precisely he has in store. Freedom of the press has a right-wing target on its back. Thomas wrote that the court should “revisit” the landmark 20th century free press case, New York Times v. Sullivan.

“Revisit” is a judicial discourse for “undo”.

Thomas claimed that “The New York Times and its progeny have allowed media organizations and interest groups ‘to cast false slander on public figures with near impunity’.” He has provided no evidence and presented no argument to defend his assertion that the existing charges on those suing for defamation are indeed excessive, given the competing interests at stake.

Don’t make a mistake. Canceling Times against Sullivan to make it much easier for public figures to sue their critics would strangle the media’s ability to report freely and speak critically of public figures, especially elected officials.

LB Sullivan was a Montgomery, Alabama city police commissioner who sued the Times and 60 prominent Americans over a full-page 1960 advertisement they placed to raise money for the nascent rights movement civics of Martin Luther King Jr. The ad called police actions against nonviolent protesters in Montgomery an “unprecedented wave of terror.”

This point of view was not shared by all, but the announcement was perfect in terms of accuracy, except for a few relatively immaterial factual errors. In the end, the court unanimously overturned a $500,000 verdict against the Times on the grounds that a public official, to prove defamation, must show that a publisher acted knowing their statement was factually true. false or made with a reckless disregard for the truth – what the law calls the “actual malice” standard.

The court wrote of “the deep national commitment of the United States to the principle that debate on public issues should be uninhibited, robust, and open.” Such a debate, the court found, requires “wiggle room” for errors. Otherwise, the threat of libel actions would dampen vigorous public debate.

The cold is real. Imagine if, to terrify critics, political figures like Donald Trump could weaponize the standard of negligence that Thomas would have the court install in place of the upper barrier of “actual malice.”

There are so many things of great importance that we might never have learned. Case in point: the meager amount of factual material that would have been released around January 6 in the cold that a Thomas standard would generate might not have been enough for the House Select Committee or the Department of Justice to investigate Trump’s role in the insurgency or his role in the coup attempt of which the insurgency was a part.

Think of Cassidy Hutchinson as modern-day Alexander Butterfield, the Nixon aide who told the 1973 Congressional Select Committee on Watergate about the existence of White House tape recordings that brought Nixon down. It might never have happened had it not been for the freedom of the press made real by The New York Times against Sullivan nearly a decade earlier.

If you need to pull a small thread from the now multi-layered embroidery of evidence of the Trump saga that the current hearings reveal, consider this: Two days after the insurgency, the media published reports that Trump was “cheerful” and “raptured” during the Jan. 6 violence, a critical slew of evidence of criminal intent if he were to be prosecuted for insurrection. The information came from White House insiders. Would they have shared it if there hadn’t been a significant legal deterrent for Trump to wrongfully sue them for defamation – New York Times v. Sullivan?

We may never know who was the source. But today a brave 25-year-old – far braver than her former boss, Mark Meadows – told us under oath that the joy was real. She testified that Trump said after hearing about the “hanging Mike Pence” from the Capitol invaders, that “Mike deserved it.”

She was in the room where it happened.

The history of 20th century totalitarianism tells us that to rule absolutely, strong men must destroy the press to hide the truth from the public. Thomas’ dissent effectively invites litigants like Sarah Palin, who is appealing his loss, to help pave the way for American carnage.

Thomas’ signal is a warning. There is comfort in the fact that he signed his dissent alone and in the prospect that a people attentive to dangerous signs can keep their republic if they remain on their guard.

  • Laurence H Tribe is professor emeritus at Carl M Loeb University and professor emeritus of constitutional law at Harvard Law School. Dennis Aftergut, a former federal prosecutor, is currently counsel for Lawyers Defending American Democracy.

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