U.S. Supreme Court Justice Clarence Thomas penned a concurring statement on Tuesday suggesting he would support weakening First Amendment protections for the media, according to The Hollywood Reporter.
Though the nation’s top court opted against reviewing a case brought by Kathrine McKee — one of Bill Cosby’s accusers who alleges defamation by Cosby’s attorney after he said her rape accusation was fabricated — Thomas offered in a pages-long concurring statement that he believes the 1964 decision in New York Times Co. v. Sullivan was wrong.
The ruling in that case determined that in defamation law, “plaintiffs need to demonstrate actual malice on the part of public figure defendants in order to prevail on a defamation claim.”
"I agree with the Court’s decision not to take up that factbound question," stated the concurrence. "I write to explain why, in an appropriate case, we should reconsider the precedents that require courts to ask it in the first place. New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own 'federal rule[s]’ by balancing the 'competing values at stake in defamation suits.' We should not continue to reflexively apply this policy-driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we."
The Hollywood reporter noted that it is unclear whether Thomas’ view is shared by any other justices on the court, but it is clear that Thomas would “totally upend many of the libel protections that many in the media — and others —have enjoyed.”
This simply was not the case with which to attempt it.
It is noteworthy that President Donald Trump has previously pledged to loosen up libel laws and make suing the media an easier task.