Justice Clarence Thomas has formally called for the Supreme Court to reconsider the 1964 landmark ruling New York Times Co. v. Sullivan, which established the "actual malice" standard for defamation cases involving public figures. In a concurring opinion, Thomas argued that the court’s interpretation of the First Amendment in libel cases lacks a basis in the original understanding of the Constitution.
The Legal Standard for Libel
The Sullivan decision requires public officials and public figures to prove "actual malice"—meaning a defendant published a statement with knowledge of its falsity or with reckless disregard for the truth—to win a libel lawsuit. This threshold is significantly higher than the standard for private individuals, who generally only need to prove negligence.
Justice Thomas challenged this framework in a 2021 statement regarding a petition for certiorari in Berisha v. Lawson. He asserted that the court’s past decisions in this area were "policy-driven" rather than grounded in the historical meaning of the First Amendment. Thomas suggested that the "actual malice" standard does not reflect the common law of libel as it existed at the time of the Constitution’s ratification.
Constitutional Interpretation and Precedent
The Justice’s argument centers on the claim that the Supreme Court has "constitutionalized" libel law, effectively stripping states of their authority to define and regulate defamation. According to Thomas, the court’s expansion of First Amendment protections has hampered the ability of public figures to protect their reputations.
"The states are more than capable of developing standards to protect their citizens," Thomas wrote in his concurring opinion. He contended that the court’s reliance on Sullivan has resulted in a body of law that serves to shield media organizations from accountability.
Legal and Institutional Context
The Sullivan precedent has served as the bedrock of American press freedom for six decades, preventing public officials from using libel lawsuits as a tool to silence critics and news organizations. Legal scholars generally view the standard as an essential safeguard for investigative journalism and political discourse.
While Justice Thomas has repeatedly signaled a desire to revisit the ruling, he has not yet gathered the necessary support from his colleagues to overturn or substantially narrow the precedent. No other member of the current Supreme Court has formally joined his call to reconsider the Sullivan standard.
The court has yet to grant a petition for certiorari that would directly challenge the "actual malice" requirement. For now, the standard remains the governing law in all U.S. jurisdictions.
