Judge Clarence Thomas, in a concurrent opinion released Tuesday, called for a review of decades of jurisprudence making it more difficult for public figures to sue media and other organizations for defamation – restrictions that were based on a series of "policies". reasoned decisions masquerading as constitutional law ".
Thomas' view is in the context of President Trump's repeated calls to facilitate defamation suits. Last weekend, Trump responded to a "Saturday Night Live" skit on his emergency statement at the southern border by asking on Twitter: "How do the networks manage to get out of business? without success?" In the same way for many other shows? should be examined. "
And last December, Trump wrote on Twitter: "Is not it unfortunate that someone can write an article or a book, invent stories and create an image of someone who is literally at home?" The opposite of the fact, and get it right wisely – this without retribution or cost.I do not know why Washington politicians do not change the laws on defamation? "
Trump sought to eliminate the high level of "malevolence" that politicians must abide by in order to prove that they were defamed by media organizations and other entities. In his opinion, Thomas argued at length that Trump's burden in such cases was truly unfair.
Usually, to prove that the defamation took place, it is sufficient for an individual to show that the defendant was not negligent and did not exercise due care in spreading a provable lie that undermined to his reputation. But in 1964, in the New York Times Co. c. Sullivan, the Supreme Court said that officials face a "burden of" malice "higher, which means that they must prove that the defendant propagated a lie either intentionally or with reckless disregard for truth.
The decision of the High Court, in the context of politically motivated lawsuits by politicians in the South, unilaterally annulled the common law of defamation applied by each state and inherited from Great Britain.
"The common law of defamation at the time of ratification of the First and Fourteenth Amendments did not require public figures to meet any standard of increased liability as a condition for recovering damages." Thomas writes.
In finding a constitutional basis for its common law annulment decision, the Sullivan court relied heavily on the opposition of the founding fathers, including James Madison, to the 1798 Sedition Act, which would have prohibited any "false" or "scandalous" writing. "against government officials.
According to Thomas, however, the fact that the drafters objected to the criminal sanctions sanctioned by criticism of civil servants did not necessarily mean that they objected to these politicians being given the benefit. A civil remedy in accessible defamation. In fact, Thomas said, the founders have consistently opposed the use of federal law to supplant the common law of states, which controlled defamation actions at the time.
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"Far from increasing the burden of a character in an action for defamation, the common law has held that defamation against a personality is at least more serious and more damaging than ordinary defamation," writes Thomas. "The defamation of an official was considered a very dangerous crime for the people and deserved[ing of] punishment, because people can be deceived and reject the best citizens for their great injury, and perhaps the loss of their freedoms. "
Thomas added: "Madison seemed to consider that" those who administer [the federal government]& # 39; & nbsp; & nbsp; & nbsp; & nbs; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; & nbsp; In summary, there seems to be little historical evidence to suggest that the current New York Times rule of malicious intent stems from the initial understanding of the First or Fourteenth Amendment. "
In the absence of a binding constitutional basis to override the common law, Thomas said, the Supreme Court had no reason to interfere in the defamation law at the of the state.
Thomas' opinion came in an unrelated case in which the High Court dismissed the appeal of actress Kathrine McKee, who had stated that the cartoon icon Bill Cosby he had raped her in 1974. McKee had sued Cosby for undermining his reputation after the actor's lawyer had leaked a letter attacking McKee. Two lower courts ruled against it and dismissed the case, largely because of McKee's role as a public figure.
No other judge joined Thomas's opinion on Tuesday, and it seemed unlikely the Supreme Court would agree to hear a case.
But Thomas's opinion could be an effort to get other groups to sue based on Sullivan, in an increasingly transformed media landscape in which information is circulating faster than ever before, said legal experts. One of the main reasons why public servants are required to sue for defamation is their perceived ability to promptly cancel misinformation – an ability that some observers believe is fading in the age of defamation. blogs and continuous advertising. news coverage.
Thomas is not the only prominent conservative judge to express his disdain for the Sullivan decision. The late Judge Antonin Scalia publicly criticized the court's decision in this case, saying the decision was odious and unfounded.
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Thomas made striking opinions in other cases, which also seemed to serve as signals. In support of Trump's reinstated travel ban, Thomas wrote that national injunctions issued by federal judges "weigh on the federal judicial system – prevent legal issues from getting through federal courts, encouraging forum shopping and making each case a national emergency for the courts and the executive branch. "
In his opinion Tuesday, Thomas suggested that federal judges do the same in defamation cases.
Bill Mears of Fox News and the Associated Press contributed to this report.