Clarence Thomas Threatens the 1st Amendment

Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling

Over the years, I’ve been lucky enough to meet a few notable politicians, writers, entertainers and well-known public figures. It’s one of the side benefits of being a journalist. One of my most memorable experiences was meeting the late New York Times columnist Anthony Lewis.

I had a chance to meet him when I was a Nieman fellow at Harvard in 1991–92. Basically, Lewis invented the field of legal journalism. A two-time winner of the Pulitzer Prize, he had always been one of my favorite writers. They say you should never get a chance to meet your heroes. Anthony Lewis proved that wrong. After he spoke to our Nieman class, we had a chance to talk with him one-on-one. He was funny, thoughtful and super smart.

He also wrote one of my favorite books. “Make No Law.” It is the story of the 1964 New York Times vs. Sullivan case that established the 1st Amendment as we know it today. It established what’s known as the concept of actual malice. In order for a libel action to proceed, the individual who claimed libel had to prove that there was actual malice involved. That basically, the speaker or the writer had to absolutely know that they were making a false statement or had acted with “utter disregard” of the truth.

Before the Sullivan decision, public figures and politicians would use libel law like a weapon to silence any and all critics. During the early 60s, many politicians in the South were using the libel laws to attack journalists who were reporting on their racist actions. On March 29, 1960, The New York Times published an ad, “Heed Their Voices,” from civil rights groups that asked for donations to help defend the Rev. Martin Luther King Junior from perjury charges. Here is how the site Oyes describes what happened next.

“The ad contained several minor factual inaccuracies. [It said King had been jailed seven times when it was only four times]. [Montgomery, Alabama] Public Safety Commissioner, L.B. Sullivan, felt that the criticism of his subordinates reflected on him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly retract the information, as required for a public figure to seek punitive damages in a libel action under Alabama law.

“When the Times refused and claimed that they were puzzled by the request, Sullivan filed a libel action against the Times and a group of African American ministers mentioned in the ad. A jury in state court awarded him $500,000 in damages. The state supreme court affirmed and the Times appealed.”

The resulting decision was a unanimous 9-0 win for the New York Times. The court ruled that if an individual was a public figure, it was not enough to prove that the media had made a false statement, the person who claimed they were libel had to be able to prove that the media knew it was false before it printed the statement and that it had acted with utter disregard for the truth.

I have little doubt that the 1964 Sullivan versus New York Times decision created one of the most important bulwarks in the defense of democracy in the United States. That decision, and the 1st Amendment that it clarified, has made the United States one of freest and safest countries in the world.

So it was with some dismay that I read Supreme Court Justice Clarence Thomas’s thoughts about the Sullivan versus New York Times decision in regards to a recently decided Supreme Court case. Thomas, whose judicial acumen is questionable at the best of times, wrote that despite the unanimous decision, the Sullivan case was decided “wrongly.” In an effort to carry water once again for Donald Trump and states’ rights, Thomas wrote that he wanted to take the law back to the early 18th century, arguing that when the founders wrote the new Constitution in 1789 they did not intend to take away states’ rights to protect its citizens from libel. This line of thinking was actually shown to be false in the Sullivan decision itself.

The Sullivan decision wasn’t merely wrong, he continued, it was a “policy driven decision masquerading as constitutional law.”

As might be expected, Thomas wrote for himself in the situation. That’s because his views are so far outside the Constitutional norm that most colleagues on the court would no doubt see them as ridiculous. Thomas, who seldom shown any signs of a sharp legal mind, never should’ve made it to the Supreme Court. His appointment was an example of a president (in this case George Herbert Walker Bush) trying to dumb down the Supreme Court as much as possible. Basically, we should’ve listened to Anita Hill instead of vilifying her. Thomas had no place on the Supreme Court then and really doesn’t now.

It’s interesting to me that an African-American judge would call for overturning Sullivan. If it had not been for Sullivan, much of the reporting that brought the treatment of blacks in the South into the living rooms of Americans across the country would not have been possible. You might even argue that the Sullivan decision, along with the 1964 Civil Rights Act, opened the door for African Americans to progress in the ways that they have, although I will be the first to admit there is still a long way to go. You could even argue that without the Sullivan decision, Clarence Thomas would never have had a chance to be appointed to the Supreme Court, nor would’ve had a chance to make our lives so miserable in every way that he could over the past decades.

I think Thomas would also be surprised that many of his fellow travelers on the far-right would be opposed to overturning Sullivan. Think of the many times that Fox News has libeled or lied or manipulated facts or abused the truth about anyone of a number of individuals. Without Sullivan, they would spend 24 hours a day in a courtroom defending libel cases. Not to mention the likes of Rush Limbaugh, Alex Jones, Laura Ingram, Sean Hannity, et al.

I miss Anthony Lewis at a time like this. No doubt he would’ve blown up Clarence Thomas in his column. I am consoled, however, by the fact that there is little if any chance of the Sullivan decision being overturned.

It’s time for Thomas to go away. He’s rambling now. He become a little more a judicial conduit for the ridiculous tweets of the worst president in American history. Maybe, as Charlie Pierce writes in Esquire, Thomas will only be replaced by somebody worse. I doubt it. It’s hard to picture anybody who’s been so consistently wrong and so consistently against the civil liberties and the freedoms of Americans as Clarence Thomas has been during his 27 years on the Supreme Court.

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