Justice Clarence Thomas is no fan of the landmark New York Times v. Sullivan defamation precedent. He previously complained about how the 1964 Supreme Court ruling has “allowed media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’”
We were reminded of Thomas’ displeasure with the decades-old ruling on Tuesday, which the beleaguered justice registered in a case that’s not even about defamation.
It arose in Counterman v. Colorado, in which a man convicted of stalking argued that First Amendment protections require the government to prove a defendant charged with making threats was aware of the threatening nature of their statements. The state of Colorado, backed by the Department of Justice, contended that a reasonable person regarding the statements as a threat of violence is sufficient.
The thing is, Thomas literally is alone — at least in this instance.
The Supreme Court sided with the defendant, Billy Raymond Counterman. Justice Elena Kagan wrote the majority opinion, with Thomas joining Justice Amy Coney Barrett’s dissent.
But Thomas also wrote his own short dissent, solely to lament what he called “the majority’s surprising and misplaced reliance on” the Times v. Sullivan precedent, which limits the ability of public figures to sue for defamation.
He, once again, called for the court to reconsider the 1964 decision. It’s “unfortunate,” Thomas wrote, “that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this Court’s jurisprudence.”
Lest any reader think that Thomas is alone in his quest against Times v. Sullivan, he insists: “I am far from alone. Many Members of this Court have questioned the soundness of New York Times and its numerous extensions.”
The thing is, Thomas literally is alone — at least in this instance. As for the “many members of this Court” whose judicial opinions he lists in support of his position, only Justice Neil Gorsuch (who didn’t dissent here) is still on the court. Thomas also cited a 1993 article by Kagan from long before she was on the court, but as the author of the opinion Thomas criticizes here, it doesn’t seem like she’s on board with his project. So, those “many members of this Court” aren’t ones who matter in terms of overturning the Times v. Sullivan precedent any time soon. Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump investigations 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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