Daniela Abratt reflects upon how views recently shared by Supreme Court Justice Thomas may erode freedoms guaranteed in the First Amendment.
U.S. Supreme Court Justice Clarence Thomas has called for a change in the entire defamation law landscape as it has existed for over 50 years. In a concurring opinion filed on February 19, 2019 in McKee v. Cosby [SC Case No. 17-1542], Justice Thomas suggested that the constitutional protections applicable to defamation actions were improperly federalized in the landmark case New York Times Co. v. Sullivan, and the high court “should reconsider our jurisprudence in this area.” Sullivan, decided in 1964, is a bedrock decision in defamation law, establishing that to prevail in a defamation case, public officials (and, as later applied in subsequent cases, public figures) must establish that a defamatory statement was published with “actual malice” – meaning that the speaker had actual knowledge of the falsity of the statement or acted with reckless disregard as to truth or falsity of the statement.
In McKee v. Cosby, Kathrine McKee accused actor Bill Cosby and his lawyer of publishing a defamatory letter about her after she alleged that Cosby sexually assaulted her 40 years ago. McKee’s defamation suit was dismissed and affirmed by the First Circuit after the court deemed her a “limited-purpose public figure” who had thrust herself into the public spotlight. With this categorization, Ms. McKee was unable to prove the letter was published with “actual malice.” The First Circuit ruled that the letter cited sources for each fact alleged and thus the speaker exhibited no reckless disregard as to the truth of those facts. McKee asked the Supreme Court to reconsider her status as a “limited-purpose public figure,” but it declined.
The “actual malice” rule was indeed a watershed moment in defamation law because it recognized that in order to robustly report on government activity and government officials, the media needs to have some level of assurance that unintentional mistakes will not subject them to costly defamation lawsuits. Indeed, as the Sullivan court found, some “breathing space” is required if the First Amendment’s goal of holding government accountable to the people is to be achieved.
Consistent with his originalist interpretive views, Justice Thomas wrote that the actual malice standard has no basis in constitutional law and contravenes the original intent of the First Amendment. He argues that “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own ‘federal rule[s]’ by balancing the ‘competing values at stake in defamation suits.’”
Thomas’ ultimate solution: let the states decide what level of protection should be afforded to speakers when defamation suits are filed by public officials and public figures.
But that seemingly simple solution would likely result in a patchwork, uneven system in which one’s First Amendment rights hinged on where the speech occurred (or where a defamation plaintiff may strategically elect to pursue a defamation claim). Justice Thomas even acknowledges that over time, policy considerations and changing views led many states to modify their individual defamation law standards of protection. Pre-Sullivan, libel was also criminalized and the states had varying laws regarding what defenses, including truth, applied. Sullivan thus provides necessary uniformity and consistency among the states.
Upending Sullivan as Justice Thomas suggests would also disrupt the wealth of case law that has developed in its wake. The Supreme Court has repeatedly revisited Sullivan (a unanimous decision) and built on it, establishing a long line of wide-ranging jurisprudence that addresses the critical balance between a plaintiff’s rights in libel suits and a free press, including the 1988 case Hustler Magazine, Inc. v. Falwell, which held that public figures and officials cannot recover for intentional infliction of emotional distress based on the publication of a caricature without showing that the publication contained false statements made with actual malice, and for example, the 1984 case Bose Corp v. Consumers Union of U.S., Inc., which let stand application of the actual malice standard to claims of product disparagement in a consumer-oriented publication review of speaker equipment.
Finally, leaving it to individual states to determine how much speech protection one is entitled to would create incredible uncertainty for media entities (whose publications know no geographic bounds), which could self-censor out of fear they will be hauled into court for the slightest of errors. The press must be permitted to investigate, write about, and criticize public figures and officials without this lingering fear. Those who ratified the First Amendment understood that—which is why they enshrined the freedoms of speech and of the press into the First Amendment.
Justice Thomas’ opinion fails to recognize that the First Amendment right to free speech and providing speakers a level of protection from defamation lawsuits are inherently intertwined, and his attempts to surgically separate the two fail. That no other member of the Court joined in Thomas’ concurrence is perhaps the best sign that this judicial view is and will remain in the extreme minority.
Daniela B. Abratt is an attorney in the Fort Lauderdale office of Thomas & LoCicero with a practice concentration in media and communications law, including defamation and invasion of privacy. She also focuses on business litigation and intellectual property matters.
With offices in Tampa and Fort Lauderdale, Thomas & LoCicero is a Florida law firm that is widely known, respected and committed to free speech and a free press. The firm represents the industry’s leading electronic and traditional publishers, as well as individual journalists, bloggers and influencers of social media on issues ranging from news gathering to invasion of privacy, from defamation to pre-publication review. At the heart of the firm’s mission is to champion free speech and defend journalism every day.