Justice Secretary Clarence Thomas, in a concurring statement released on Tuesday, called for a reversal of decades of case law making it harder for public figures to accuse media companies and other organizations of defamation – restrictions that are based on a series of "policy-driven Decisions that express themselves as constitutional law ".
Thomas & # 39; s opinion is set against the backdrop of President Trump's repeated requests to facilitate the slander. Last weekend, Trump responded to a Saturday Night Live sketch about his Southern Front emergency response by asking on Twitter, "How come the networks with these totally republican hit jobs without retaliation, including many other shows, very unfair and should
And last December, Trump wrote on Twitter: "Is not it a shame that someone can write an article or a book, invent stories, and form a picture of a person who is literally just the opposite of Do not know why Washington politicians do not change the laws against slander? "
Trump sought to eliminate the high degree of" actual malice "that politicians must meet to prove that they have been defamed by media organizations and other entities. In his view, Thomas argued in detail that Trump's burden was indeed unfair in such cases.
Normally a private person only has to prove that a defendant did not negligently exercise due care in the distribution of a provable offspring lie that has damaged his reputation. But in 1
The Supreme Court's decision, which came as part of a wave of politically-motivated complaints by southern political officials, unilaterally struck down the ordinary law defamation applied by each of the states and inherited from Britain.
"The Common Law of Libel at the time of ratification of the First and Fourth Amendment required that public figures not reclaim an increased standard of liability as a condition of damages," wrote Thomas.
In seeking a constitutional basis for his ruling that replaces this customary law, the court in Sullivan relied heavily on the founding fathers' opposition, including James Madison, against the Sedition Act of 1798, which prohibited this "false" or "scandalous" writings against government officials.
According to Thomas, the fact that the Framers refused criminal sanctions for criticizing state officials does not necessarily mean that they oppose the provision of an accessible civilian defamation device for these politicians. Thomas said the founders consistently opposed the application of federal law to override the customary law of the state, which at that time controlled the defamation lawsuits.
TRUMP: OUR LIBELY LAWS ARE ONE & # 39; SHAM & # 39;
"Far from increasing the burden of a public figure in a defamation lawsuit, the common law considered that public opportunities against public figures were, if anything, more serious and more harmful than ordinary lies," Thomas wrote. "The defamation of an official was considered a most dangerous offense for humans and deserves [ing of] punishment because the people can be deceived and the best citizens can reject their great injury and it can lead to the loss of their freedoms."
Thomas added, "Madison seemed to consider that" those who administer [the federal government] "retain a cure for their injured reputation, under the same laws and in the same tribunals that protect their lives, their freedoms and their qualities … In short, there seems to be little historical evidence to suggest that the regularity of the New York Times emerges from the original understanding of the First or Fourteenth Amendment. "
In the absence of a The compelling constitutional basis for customary law To override, Thomas said that the Supreme Court had not dealt with it primarily on state he slander laws.
Thomas's opinion came in an independent case in which the Supreme Court had dismissed an appeal cast member Kathrine McKee, who said comic icon Bill Cosby had raped her in 1974. McKee sued Cosby for having damaged her reputation after a comic lawyer allegedly leaked a letter to McKee. Two lower courts have ruled against them, rejecting the case, largely based on McKee's role as a public figure.
No other justice joined Thomas's opinion on Tuesday, and it seemed unlikely that the Supreme Court would agree to a Supreme Court hearing case.
But Thomas & # 39; s opinion may have been an attempt to signal to other groups that they are filing a Sullivan-based lawsuit in an increasingly diverse media landscape in which information is moving faster than ever before, lawyers said. One of the key reasons for setting a higher bar for defamation officials relates to their perceived ability to quickly self-eradicate misinformation – an ability that, according to some observers, is dwindling in the age of blogs and around-the-clock reporting ,
Thomas is not the only prominent conservative voice that despises the vote for Sullivan's decision. The late Minister of Justice, Antonin Scalia, has publicly challenged the ruling of the court in this case and said it was abominable and unconstitutional.
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. Thomas has in other cases made conspicuous opinions that apparently also served as a signal. In support of Trump's renewed travel ban, Thomas wrote that nationwide orders issued by individual federal judges "put a strain on the federal court system – preventing legal issues from leaking through the federal courts, encouraging forensic hopping and, in any case, becoming a national emergency Courts and for the Executive. "
In Tuesday's opinion, Thomas suggested that federal judges should also cancel out libel cases.
Bill Mears and The Associated Press of Fox News contributed to this report.