When Kathrine McKee filed a defamation suit against Bill Cosby, Justice Clarence Thomas called for a reconsideration of New York Times v. Sullivan, a ruling from 1964 that made it difficult for public officials to win in libel suits. Libel is any perceived defamation expressed through print, speech or any other physical communication deemed to damage another’s reputation.
Thomas’ opinion, written in concurrence with the ruling, stated that the Sullivan standard of proving “actual malice” in libelous publications was a “policy driven approach to the Constitution,” rather than valid interpretation of the First and Fourteenth Amendments. In simpler terms, Thomas’ opinion means that “policy” could override citizen protections granted in the U.S. Constitution.
While this unpopular opinion is unlikely to come to fruition any time soon, it still presents a horrifyingly Trumpian mindset that, if set into motion, would irrevocably damage public discourse and the media landscape as we know it.
If the standard were reinterpreted along the lines of the Constitution, as Justice Thomas proposed, then oft-reported about figures in the public eye would be able to sue over every little offense ever published.
It is widely recognized that The New York Times v. Sullivan case was a foundational cornerstone of modern American speech freedoms. On the 50th anniversary of the case in 2014, Roy S. Gutterman, a professor of communications law and journalism, said:
“There are few Supreme Court cases that are so closely intertwined with the values that define America and epitomize our rights of self-expression and rights to create, express ourselves and critique our leaders.”
The Sullivan Standard rightly secures the press and public the right to free discourse, uninhibited by potential retribution perpetrated by those who already have inequitable influence over public opinion.
Imagine how often a certain oversensitive tyrannical executive would take people to court over public criticism. Countless publications would be forced out of print if Trump could have his way and “...open up our libel laws” to allow for successful prosecution of media.
The ruling in the Sullivan Standard is a much needed tipping of the scales in favor of press freedoms, without which we would be forced to live in constant fear of legal vengeance for exercising our endowed right to free speech.