Thomas Calls for Reconsidering New York Times v. Sullivan

This is the case Mastandrea v. SnowThis was handed down yesterday. Below is an extract from Judge Thomas’ concurrence.

Because I agree, I accept the responsibility of being bound by this decision New York Times v. Sullivan (1964).

Justice Clarence Thomas agrees with Judge Lawrence Silberman and Justice Neil Gorsuch. New York Timesit was incorrectly decided, and not grounded in history or the text of the First Amendment. Appellant and other public-figure defamation plaintiffs should not have to prove that the alleged defamation was made with the knowledge that it was false or with reckless disregard of the truth, as this is an “almost impossible” burden ….

New York TimesSociety has suffered real harm:

Lies, whether public or private cause real harm. For example, consider the attack on a pizza joint that was rumoredly “the home for a Satanic child abuse ring including top Democrats like Hillary Clinton”. Consider how false online claims that someone is a “thief”, a fraudster or a pedophile can lead to the creation of a home security system. Think about those who lost job opportunities due to false allegations of anti-Semitism or racism. Or read about Kathrine McKee—surely this Court should not remove a woman’s right to defend her reputation in court simply because she accuses a powerful man of rape.

Proliferation of falsehoods has always been a problem. We should not continue to shield those who lie from traditional remedies such as libel suits. Instead, we should provide them with the First Amendment protection they need.

Berisha v. Lawson (Thomas, J., dissenting) (mem.) (emphasis added)….

There is very little chance of rehabilitating a public person whose reputation has been destroyed. Rarely will a news outlet or private actor run a story on how a false statement has damaged a person’s reputation. Too often, defamed plaintiffs don’t have the resources or financial means to challenge the “actual malice” standard set by the court. New York Times….

Decisions in New York TimesThe environment created by it and its descendants has made public the possibility that anyone may be hurt or defamed. There is no legal recourse. This has resulted in the ruin of many reputations, including those who did not agree to become a public figure. The public bad from civic-minded citizens that are willing to give their energy, knowledge and insights to fellow citizens has declined to be a part of this political environment since 1964.

That is the terrible injury done to the body politic, and the innocent victims of defamation. The reputation of an individual is essential to his or her dignity as human being. Rosenblatt v. Baer(1966). (Stewart J. concurring) “The right to a [person]for his protection [or her]Our basic idea of the truth reflects our reputation for unjustified invasions and wrongful harm. It is essential to have dignity worth of every human being—a concept at the root of any decent system of ordered liberty.” (emphasis added)).

A private actor or media person can defame a victim. This is character assassination. A court ruling that denies the victim of defamation the legal right to seek damages for theft is not just. It also deprives them of the rights they are entitled to.

It is both an infringement of the United States Constitution’s original meaning and a breach of natural justice.

The plaintiff is charged with infringing the plaintiff’s rights to his reputation. “The security of his reputation [or her]Blackstone says that reputation and good will are earned through the arts detraction or slander.Everybody has the right to certain rights [person]Natural justice and reason are the only grounds for his or her rightsSince without them, It is impossible to enjoy all the benefits and rights of another advantage..’

New York Evening Post Co. (2d Cir. 1920) (emphasis added)….

A lawsuit was brought by the city councilman against the resident. This case was made on the basis of the resident allegedly telling the public that the councilman had “taken” the application for rezoning from a commercial developer. The resident also claimed the councilman told them the “on-the-take” councilman said. Under the circumstances, the trial court dismissed. New York Times Standard, finding that there was “no evidence that she knew that her statements were false” or that they were made with reckless disregard for truth; Court of Appeal concurred.