Supreme Court declines to pick up major media defamation suit, Justice Thomas reiterates desire to reconsider court's 'actual-malice' standard

October 11, 2023
Ben Marquis

Supreme Court Justice Clarence Thomas has let it be known in the past that he is not a fan of the high bar standard set by the court nearly 60 years ago with regard to claims against the media of defamation and libel by public figures.

Now, after the Supreme Court just declined to take up a major media defamation lawsuit, Justice Thomas has once again reiterated his desire for the court to reconsider the "actual-malice" standard set by 1964's New York Times v. Sullivan decision, according to the Washington Examiner.

Interestingly enough, Thomas agreed with his fellow jurists in deciding not to take up the immediate case at hand but nonetheless used that opportunity to announce that he was still on the lookout for an "appropriate case" that could be used to revisit the New York Times ruling.

Coal mining executive sued media organizations over false "convicted felon" characterization

At issue here was an appeal from West Virginia coal mining executive Don Blankenship over a defamation lawsuit he filed against numerous major media outlets that he accused of deliberately lying about his criminal record during an unsuccessful 2018 U.S. Senate run as a Republican to unseat Sen. Joe Manchin (D-WV).

The various media outlets repeatedly and inaccurately referred to Blankenship as a "convicted felon" when, in fact, he had actually been acquitted of multiple felony charges for alleged violations of mine safety regulations and was only convicted of a misdemeanor in a 2015 trial that stemmed from a deadly 2010 mine explosion, according to Reuters.

His lawsuit, first filed in 2019 on a claim that the media's false defamation of him as a "felon" contributed to his electoral loss, but a federal judge ruled against him in 2022 and that decision was upheld earlier this year by a 4th Circuit Court of Appeals panel.

Blankenship, who was previously rejected by the Supreme Court when he requested that his misdemeanor conviction be overturned, filed another petition with the high court this year that asked the justices to overturn the New York Times v. Sullivan precedent and make it easier for public figures to sue media organizations for defamation and libel.

Thomas questions the constitutionality of the court's "actual-malice" defamation standard

In an Order List released on Tuesday, the Supreme Court declined to take up Blankenship's petition to be heard, and while Justice Thomas agreed with that decision -- he submitted that Blankenship's claims were appropriately addressed at the state level -- he took advantage of the opportunity to renew his opposition to the 1964 precedent that he and others believe should be reconsidered.

Noting that defamation and libel claims were typically handled by state law up until the 1964 ruling, Thomas wrote, "The Court usurped control over libel law and imposed its own elevated standard in New York Times Co. v. Sullivan."

The ruling established a federal standard of "actual malice" -- or, "knowledge that it was false or with reckless disregard of whether it was false or not" -- for public officials to prove that they had been defamed or libeled by a media organization, which Thomas argued was not based on the foundations laid by the First or Fourteenth Amendments but rather on public opposition to certain earlier speech laws and a "consensus of scholarly opinion."

"I continue to adhere to my view that we should reconsider the actual-malice standard," Thomas continued and asserted that the New York Times and subsequent "decisions extending it were policy-driven decisions masquerading as constitutional law" and had "no relation to the text, history, or structure of the Constitution."

"And the actual-malice standard comes at a heavy cost, allowing media organizations and interest groups 'to cast false aspersions on public figures with near impunity,'" he wrote. "The Court cannot justify continuing to impose a rule of its own creation when it has not 'even inquired whether the First or Fourteenth Amendment, as originally understood, encompasses an actual-malice standard.'"

Still waiting for "an appropriate case" to reconsider New York Times precedent

In the end, Justice Thomas wrote, "I agree with the Court’s decision not to take up that question in this case because it appears that Blankenship’s
claims are independently subject to an actual-malice standard as a matter of state law."

"In an appropriate case, however, we should reconsider New York Times and our other decisions displacing state defamation law," he added.

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