Justice Clarence Thomas might hold a revered seat on the nation's highest court, but that doesn't mean his judgment always reflects sound reasoning. He was way off base last week in calling for the Supreme Court to revisit New York Times v. Sullivan, a landmark ruling that raised the bar for public officials to win media defamation lawsuits.
The 1964 ruling held that public figures must prove that a "reckless disregard" for the truth or "malice aforethought" motivated the publication or broadcasting of information deemed defamatory to the plaintiff. Rarely has the ruling been more important than today. President Donald Trump would love to lower the bar so he could sue to silence journalists' investigations of his actions.
Trump asserts defamation at the slightest unflattering news story or "Saturday Night Live" skit. He recently wondered about "retribution" after an SNL skit mocked his multiple bizarre statements during a meandering 45-minute news conference last Friday.
Journalism students are required to study Sullivan so they can absorb the strict ethical and legal boundaries of our profession. Reporters may not abuse their constitutionally protected rights by carrying out vendettas (malice aforethought) against public personalities. Knowingly publishing false information is an unpardonable sin.
Trump supporters are probably choking on their morning coffee right now, asking: What about all those media attacks on Trump? That's not malice? That's not a reckless disregard for the truth?
Holding presidents, or any public officials, accountable for their words and deeds is a far cry from acting with malicious intent. The overriding mission is to report the facts. Mistakes do happen, and if they're egregious enough, reporters can lose their jobs. The names Dan Rather, Peter Arnett and Judith Miller come to mind.
On the opinion pages, even fair commentary has boundaries. Sen. Daniel Patrick Moynihan offered this guidance: "Everyone is entitled to his own opinion, but not to his own facts."
Justice Thomas thinks the current legal standard is too onerous, writing: "If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we. ... The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm."
The 1964 ruling came specifically because state courts were not "perfectly capable" of striking such a balance. The sheriff of Montgomery, Alabama, claimed defamation after the Times published an advertisement critical of his department's behavior during a civil rights protest. The sheriff wasn't even mentioned in the ad.
Had the Supreme Court not overruled lower state courts, the chilling effect on press freedoms would have resonated well into the Watergate era and beyond. The fact that no other justice signed on to Thomas' critique speaks volumes. The court had a sound basis for its ruling then and has no reason to rethink it now.
REPRINTED FROM THE ST. LOUIS POST-DISPATCH