Clarence Thomas backs Trump's call for changing defamation law to ease suits against media

[Leroy N. Soetoro]

https://www.foxnews.com/politics/clarence-thomas-calls-for-easing-
defamation-suits-by-politicians-like-trump

Justice Clarence Thomas, in a concurring opinion released Tuesday, called
for reversing decades of jurisprudence that has made it harder for public
figures to sue media outlets and other organizations for defamation --
restrictions that were premised, he said, on a series of "policy-driven
decisions masquerading as constitutional law."

Thomas' opinion comes against the backdrop of President Trump's repeated
calls to make it easier to sue for defamation. Last weekend, Trump reacted
to a "Saturday Night Live" skit about his southern-border emergency
declaration by asking on Twitter, "How do the Networks get away with these
total Republican hit jobs without retribution? Likewise for many other
shows? Very unfair and should be looked into."

And last December, Trump wrote on Twitter: "Isn’t it a shame that someone
can write an article or book, totally make up stories and form a picture
of a person that is literally the exact opposite of the fact, and get away
with it without retribution or cost. Don’t know why Washington politicians
don’t change libel laws?"

The remarks also come as attorneys representing the Kentucky high school
student involved in a confrontation that went viral on social media last
month announced Tuesday that they were suing The Washington Post for $250
million in compensatory and punitive damages for defamation. The students
could be determined to be limited public figures due to their high-profile
media exposure.

Trump has sought elimination of the high "actual malice" standard that
politicians and public figures must meet in order to prove they have been
defamed by media organizations and other entities. In his opinion, Thomas
argued at length that Trump's burden in such cases is indeed unfair.

Ordinarily, to prove defamation has occurred, a private individual only
has to to show that a defendant negligently failed to exercise reasonable
care in spreading a provable falsehood that has harmed his reputation. But
in 1964, the Supreme Court ruled in New York Times Co. v. Sullivan that
public officials must meet a higher "actual malice" burden. This means
they must prove that the defendant spread a falsehood either intentionally
or with reckless disregard for the truth.


Donald J. Trump
?
@realDonaldTrump
Nothing funny about tired Saturday Night Live on Fake News NBC! Question
is, how do the Networks get away with these total Republican hit jobs
without retribution? Likewise for many other shows? Very unfair and should
be looked into. This is the real Collusion!

114K
4:52 AM - Feb 17, 2019
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The high court's ruling, which came amid a surge of politically motivated
lawsuits by Southern political officials, unilaterally struck down the
common law on defamation that was employed by each of the states and
inherited from Britain.

"The common law of libel at the time the First and 14th Amendments were
ratified did not require public figures to satisfy any kind of heightened
liability standard as a condition of recovering damages," Thomas wrote.

In finding a constitutional basis for its ruling superseding that common
law, the Sullivan court relied heavily on opposition by the founding
fathers, including James Madison, to the Sedition Act of 1798, which would
have prohibited any "false" or "scandalous" writings against government
officers.

Alec Baldwin as Donald Trump on "Saturday Night Live." Trump has suggested
liberal media portrayals of him constitute defamation and contain
falsehoods.
Alec Baldwin as Donald Trump on "Saturday Night Live." Trump has suggested
liberal media portrayals of him constitute defamation and contain
falsehoods. (YouTube)

According to Thomas, though, the fact that the framers opposed criminal
punishment for criticisms of public officials did not necessarily mean
they opposed providing an accessible civil defamation remedy for those
politicians. In fact, Thomas said, the founders consistently opposed using
federal law to override state common law, which controlled defamation
actions at the time.

TRUMP: OUR LIBEL LAWS ARE A 'SHAM'

"Far from increasing a public figure’s burden in a defamation action, the
common law deemed libels against public figures to be, if anything, more
serious and injurious than ordinary libels," Thomas wrote. "Libel of a
public official was deemed an offense 'most dangerous to the people, and
deserv[ing of] punishment, because the people may be deceived and reject
the best citizens to their great injury, and it may be to the loss of
their liberties.'"


Donald J. Trump
?
@realDonaldTrump
Isn’t it a shame that someone can write an article or book, totally make
up stories and form a picture of a person that is literally the exact
opposite of the fact, and get away with it without retribution or cost.
Don’t know why Washington politicians don’t change libel laws?

111K
3:33 AM - Sep 5, 2018
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80.7K people are talking about this
Thomas added: "Madison seemed to contemplate that 'those who administer
[the federal government]' retain “a remedy, for their injured reputations,
under the same laws, and in the same tribunals, which protect their lives,
their liberties, and their properties. ... In short, there appears to be
little historical evidence suggesting that The New York Times actual-
malice rule flows from the original understanding of the First or 14th
Amendment."

In the absence of a compelling constitutional basis to override common
law, Thomas said, the Supreme Court had no business getting involved in
state-level defamation law in the first place.

Thomas' opinion came in an unrelated case in which the high court rejected
an appeal from actress Kathrine McKee, who said comic icon Bill Cosby
raped her in 1974. McKee sued Cosby for damaging her reputation after a
lawyer for the comedian allegedly leaked a letter attacking McKee. Two
lower courts ruled against her and dismissed the case, based largely on
McKee's role as a public figure.

No other justice joined Thomas' opinion on Tuesday, and it appeared
unlikely that the Supreme Court would agree to hear a challenge to the
case.

But Thomas' opinion may have been an effort to signal to other groups to
bring a lawsuit based on Sullivan, amid an increasingly changed media
landscape in which information travels more quickly than ever, legal
experts said. One of the key rationales for setting a higher bar for
public officials to sue for defamation relates to their perceived ability
to quickly quash misinformation on their own -- an ability that some
observers say is fading in the age of blogs and around-the-clock news
coverage.

Thomas is not the only prominent conservative justice to voice disdain for
the Sullivan decision. The late Justice Antonin Scalia publicly railed
against the court's ruling in that case, saying it was abhorrent and
constitutionally baseless.

Thomas has issued striking opinions in other cases that seemingly also
served as signals. In support of Trump's reinstated travel ban, Thomas
wrote that nationwide injunctions issued by individual federal judges
“take a toll on the federal court system — preventing legal questions from
percolating through the federal courts, encouraging forum shopping, and
making every case a national emergency for the courts and for the
executive branch.”

In Tuesday's opinion, Thomas suggested federal judges should similarly
butt out of defamation cases.



--
Donald J. Trump, 304 electoral votes to 227, defeated compulsive liar in
denial Hillary Rodham Clinton on December 19th, 2016. The clown car
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