Justice Clarence Thomas and Donald Trump agree on need for libel law reform

For decades, public figures have lacked legal options when it comes to suing media publications for libel.

Now, however, President Donald Trump and Supreme Court Justice Clarence Thomas are of the same mind when it comes to protecting celebrity personalities who are viciously slandered by the mainstream press. 

An impossible standard

Due to a landmark 1964 Supreme Court decision in New York Times Co. v. Sullivan, public figures have been bound by an arbitrary and inconsistent standard requiring them to prove “actual malice” when the media prints or broadcasts false and derogatory statements about them. This provision makes it all but impossible for persons of renown to recover damages and dissuade publications from tarnishing their images.

Thomas disputed the precedent on Tuesday in a concurring opinion where he declined to review the Kathrine McKee v. William Cosby case. McKee accused comedian Bill Cosby of raping her 40 years ago, and she claims that Cosby’s attorney responded to her lawsuit by leaking a letter which purposefully distorts her background to “damage her reputation for truthfulness and honesty, and further to embarrass, harass, humiliate, intimidate, and shame” her.

However, a lower appeals court ruled that McKee became a “limited-purpose public figure” when she shared the details of her rape with a news reporter. Having “thrust” herself into the media spotlight, Cosby’s lawyers convinced the court that McKee spontaneously became a public figure. As such, the plaintiff would have to prove that Cosby’s attorneys were motivated by malicious intent when they published their defamatory letter.

“Like many plaintiffs subject to this ‘almost impossible’ standard, McKee was unable to make that showing,” Thomas surmised. Rather than take up the issue of whether or not McKee should be considered a public figure, however, Thomas argued that “we should reconsider the precedents that require courts to ask it in the first place.”

New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” the justice wrote. He continued, “We should not continue to reflexively apply this policy-driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.”

Thomas believes that federal courts are operating outside their jurisdiction by applying standards to libel laws which do not apply at the state level. He said that after 1964, the Supreme Court “federalized major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States.”

It takes two to tango

President Trump expressed dissatisfaction with the current libel laws while campaigning in 2016. “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” he promised at a Fort Worth rally.

Shortly after taking office, Trump repeated his concerns regarding the media’s First Amendment rights. This time, he specifically mentioned The New York Times as an offender.


Supreme Court analyst Steve Vladeck believes that Thomas’s concurring opinion could be the first step in satisfying Trump’s demands for a system of libel laws which insulate public figures from antagonistic media sources.

“Since he was on the campaign trail, President Trump has complained about libel laws in the United States, and has argued that they should be rewritten,” Vladeck said. “Justice Thomas’s opinion today concurring in the denial of certiorari is a roadmap to exactly that result.”

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