When Supreme Court Justice Clarence Thomas concurred in February 2019 in denying Katherine McKee’s request for a review of her status as a “limited public figure,” he included an observation that shook the mainstream news media.
McKee, who had claimed comedian Bill Cosby sexually assaulted her years ago, sued him for libel after Cosby’s lawyer publicly accused her of dishonesty.
A lower federal court ruled against McKee, claiming that, as a limited public figure, she had failed to prove, as required by the 1964 Supreme Court decision of New York Times v. Sullivan, that Cosby’s lawyer knew his accusation was false but said it anyway.
Thomas, currently the high court’s longest-serving member, declared that federal courts “should reconsider the precedents that require courts to ask [if a plaintiff is a public figure] in the first place. New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”
Thomas called for a fundamental reexamination of the Sullivan decision that, according to its critics then and since, replaced libel laws in the 50 states with one federal standard, and in the process all but placed journalists beyond accountability, regardless of damage done to reputations, careers, or lives.
“We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area,” Thomas wrote.
Thomas generated an initial flurry of highly critical media coverage. The New York Times, for example, linked the justice’s words to prior comments by President Donald Trump calling for libel law reforms.
But the NY Times acknowledged that “thanks to the Sullivan decision, it is indeed hard for public figures to win libel suits. They have to prove that something false was said about them, that it harmed their reputation and that the writer acted with ‘actual malice.’ That last term is misleading, as it has nothing to do with the ordinary meaning of malice in the sense of spite or ill will.
“To prove actual malice under the Sullivan decision, a libel plaintiff must show that the writer knew the disputed statement was false or had acted with ‘reckless disregard.’ That second phrase is also a term of art. The Supreme Court has said that it requires proof that the writer entertained serious doubts about the truth of the statement.”
All of that was true, but it only told part of the story. Surprisingly little media attention, however, was subsequently paid to Thomas’s comment.
But now, along comes law professor Glenn Reynolds, who examines the rest of the story in a Tennessee Law Review article and suggests the path such a reexamination should follow needn’t threaten the Sullivan decision’s core reasoning.
“Today, many institutional arrangements reached in the mid-20th century are being rethought and renegotiated. One such arrangement involves libel, and the responsibility of publishers for harm they cause via defamation,” Reynolds writes.
“As even some left-leaning scholars note, [Thomas] may have a point, and it seems likely that the Supreme Court will revisit the issue of libel in the near future.”
The key problem with Sullivan, according to Reynolds, is it spawned decisions creating the doctrine of the “public figure” who cannot prevail without first proving at the outset of a case prior to discovery that the offending journalist knew or had strong reason to believe what was being reported was false.
As a result, “public figures” came to be public officials-plus, that is, anybody frequently, or in some circumstances only occasionally, in the public eye, including entertainers, sports figures, corporate executives, political activists, private citizens expressing opinions, and even journalists themselves.
Those decisions, most notably in the 1974 Gertz v Robert Welch case, erected nearly “insuperable hurdles” to private individuals successfully defending themselves against defamatory or false reporting.
“Gertz, however, essentially approved a sort of ‘tax’ on free speech — if you ‘thrust’ yourself into a public debate (a phrasing that suggests that there is something vaguely inappropriate about your involvement somehow), then you pay a price:
“People may now libel you with much less fear of consequences. Rather than protection for free speech, the Gertz formulation looks more like an admonition to the peasantry to know its place,” according to Reynolds.
“Worse yet, thanks to Google, such defamation becomes near-permanent. Where once a defamatory headline on a Tuesday was wrapped around fish by Thursday, now it remains, evergreen, to be recalled whenever the defamed’s name is searched.”
Rather than overturning Sullivan entirely, which Reynolds acknowledges is unlikely, he suggests targeting “some of its descendants,” beginning with “simply eliminating the ‘public figure’ concept and returning to the ‘public official’ language” of the 1964 decision.
“This approach would undo most of the harm done to plaintiffs, while retaining the rationale of the original decision, which was inspired by a cabal of state officials trying to avoid media scrutiny,” Reynolds writes.
Another approach would be using a “reasonable person” standard prior to publication of potentially defamatory claims, according to Reynolds. The journalist would need to be able to show that a “reasonable person” wouldn’t regard the article as defamatory. That standard is already in wide use in the courts in tort law “and should be readily understood by courts and juries.”
Both approaches would make it easier for more private individuals to overcome those “insuperable hurdles” Reynolds condemns.
Not everybody agrees with Reynolds. New York-based Media Law Resource Center (MLRC) Deputy Director Jeff Hermes told The Epoch Times on Aug. 12 there’s room for discussion because “there is a wide variety of opinions from different courts and jurisdictions as when one crosses the line” into being a public figure at some level.
“But the idea of walking things back to actual malice only being required of public officials troubles me because I think that there should be a policy that whenever possible disputes over facts or events should be resolved through public discussion rather than lawsuits punishing speech.”
Similarly, former longtime NY Times assistant general counsel Geoff Freeman told The Epoch Times he thinks Reynolds deploys an excessively broad understanding of public figures, especially regarding those thrust into the media by events beyond their control.
“Some judges have ruled that people who I would think are a public figure are not, and other times, it works the other way around,” Freeman said. “That’s not a strength, but I wouldn’t say that the category is so broad as to include almost everyone, which is what he seems to be saying.”
Freeman, who is also MLRC’s executive director, said courts have yet to deal with the fact that “now with the internet, everyone to some degree, has access to the media and can make his views heard.”
He worries that taking away “public figure protection” for journalists would “significantly add to potential liability and make it more likely that cases would be lost.”
But Elizabeth Locke, a defamation law expert whose firm won a $3 million jury verdict against Rolling Stone in 2016, thinks Reynolds is right.
During an Oct. 3, 2019, presentation at the Heritage Foundation prompted by the Thomas opinion, Locke said “judges strain to find people who have somehow enmeshed themselves in a controversy and judges define these controversies incredibly broadly.”
Among several examples cited by Locke was a professional belly dancer judged a limited public figure “because she welcomed publicity regarding her performances.”
Contact Mark Tapscott at Mark.Tapscott@epochtimes.nyc