Supreme Court Justice Clarence Thomas keeps railing against a decades-old defamation precedent — and he keeps doing so alone. The latest instance came Tuesday when the Republican-appointed justice reiterated his view that he and his colleagues should “reconsider the actual-malice standard.” The standard is from the landmark 1964 ruling in New York Times v. Sullivan, which is used today when public figures sue for defamation.
Thomas’ latest opinion on the matter was issued in connection with a petition the court rejected from coal baron Don Blankenship. The Massey Energy Company CEO sued MSNBC, NBCUniversal (MSNBC’s parent company), Fox News and others for calling him a felon when he was actually convicted of a misdemeanor for conspiring to willfully violate federal mine safety laws and regulations. His prosecution followed a 2010 explosion at his mine that killed 29 miners. He was sentenced to a year in prison.
Blankenship argued the alleged media damage was irreparable because he was running for U.S. Senate in 2018 and no person convicted of a felony had ever been elected to the Senate. He lost the West Virginia Republican primary to state attorney general Patrick Morrisey, who lost to incumbent Democrat Joe Manchin.
In his petition to the justices, Blankenship called on the court to revisit the actual malice standard, which makes plaintiffs prove the statements in question were made with knowledge of their falsity or with reckless disregard of whether they were true. But the court hasn’t shown much of an appetite for taking on the issue, as it’s mostly been Thomas staking out his position that the precedent should be revised, because, in his view, it has no relation to the text, history or structure of the Constitution.
In his latest opinion expressing that view, Thomas actually agreed with his colleagues that Blankenship’s appeal should be rejected, because it appeared the plaintiff’s claims are independently subject to an actual malice standard under state law (as opposed to just the federal rule from the Sullivan precedent).
“In an appropriate case, however,” Thomas wrote, “we should reconsider New York Times and our other decisions displacing state defamation law.” But for now, Thomas still appears to be alone in that quest. Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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