Supreme Court Justice Clarence Thomas made a remarkable point today in slipping into the fundamental rejection of a case essential to the protection of the modern press by the First Amendment. It's bad for everyone in journalism – everyone at the glow, everyone at department stores like the To post and Time, even the chuds at the Daily caller.
In a concurring opinion on a court decision related to the Bill Cosby case, Thomas suggested that the Court restore the precedent set to New York Times vs. Sullivan, a landmark case that established what public figures – like politicians – had to prove to win a libel suit. Courts Times v Sullivan Decision makes it very difficult for officials like the notoriously contentious president to sue for defamation, forcing them to prove that the publication they want to pursue knowingly and recklessly has published something wrong.
This precedent is an essential provision of the current functioning of the free press – this is what prevents virtually any publication that publishes articles critical of the government to be buried in waves of lawsuits. And Thomas, one of the most conservative members of the court, says he wants to see him go.
By the New York Times aujourd & # 39; hui:
According to Justice Thomas, the first amendment in no way limited the power of states to protect the reputation of their citizens and their rulers as they wished. When the first amendment was ratified, he wrote, many states made it very easy to sue for civil defamation and to sue defamation as a crime. It was, he writes, as it should be.
"We only started to interfere in this area in 1964, nearly 175 years after the ratification of the First Amendment," wrote Judge Thomas about the Sullivan decision. "States are perfectly capable of finding an acceptable balance between encouraging vigorous public discourse and providing a meaningful remedy against reputational damage."
Thomas is known as an originalist, or as a person who basically thinks that the authors of the Constitution knew best and that we should not play with their wisdom. That would go, of course, with his aversion to Times v SullivanThe extension of what the First Amendment really protects. But as Slate's Mark Joseph Stern puts it in his headline, gathering the responses of other heavyweight reporters and putting this into context, what Thomas says about states' ability to protect press freedom is essentially bullshit.
What it would mean today is pretty obvious. The post office tells a story quoting Trump's anonymous officials saying something damaging? Trial. Does a publication report credible charges against a public official that are false or misinterpreted? Trial.
This, of course, is something that Trump has already said that he wants to do. The president is actively seeking the possibility of prosecuting the free press, as it has so far been an obstacle for people in his administration who come out with a ton of crime. And now, Thomas has given him at least a solid vote in the Supreme Court.
Trump seems to be giving weight to the strategy of pleading cases before the Supreme Court and hopes that his two nominees for one seat and the other three Conservative Supreme Court justices will break decisive decisions if they vote for the same party. But fortunately for, well, just about everyone, that may not necessarily be the case. Chief Justice John Roberts has sometimes joined the more liberal judges of the court, and the Time notes that Gorsuch and Kavanaugh both expressed their support for the broader interpretation of defamation protection in previous cases. But it is rather frightening to know that Clarence Thomas, who is often dumb, is ready to express himself in favor of the silence of the free press, if and when it should be.