Thursday, February 28, 2019

Clarence Thomas, Donald Trump and New York Times v. Sullivan

Like so many Americans, I constantly find myself troubled by the current administration and its seemingly daily assault on our values.  However, I am usually confident that this is just an aberration and that the ship of state will ultimately right itself.  I don't spend a lot of time expressing my political opinions but this gave me a chill.   

In a concurring opinion this week Justice Clarence Thomas appears to advocate overturning New York Times v. Sullivan.  This landmark 1964 case held that in order for public figures to prevail in a libel case they must prove that a statement made against them was false, that it damaged their reputation and that the statements were made with actual malice (knowledge that the statements were false or made in reckless disregard for the truth).  New York Times v. Sullivan effectively ended the practice of politicians and other people in power using threats to stop the press from doing its job and citizens from seeking the truth.  

Freedom of the press is such a bedrock piece of American democracy that it is actually shocking to me that the concept can be questioned in 2019.  Most public figures and journalists working today have spent their entire careers understanding this principle.  Why then is Clarence Thomas taking issue with it?  He apparently believes that there is nothing in the First Amendment that should  limit the authority of individual states to protect the reputation of their citizens through designing their own libel and defamation laws.  Thomas states in his concurring opinion, "We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified."  Thomas is flat out wrong.  Justice Brennan's opinion in New York Times v. Sullivanpainstakingly examines the precedent which allowed the justices to determine that many states' libel laws ran afoul of the First Amendment in  an opinion which went back to the writings of Madison and Jefferson.  

What is really terrifying about Thomas' remarks are that they come at the same time that President Trump tweets about wanting to sue theNew York Timesand the Washington Post"and win money" or complains that the government needs to get involved because he can't stand a satirical piece on Saturday Night Live.  These are really scary times and it is often comforting to take instruction from the past. All Americans should read the court's opinion in New York Times and Sullivan, especially its citation of Justice Brandeis' concurring opinion in Whitney v. Californiawherein he wrote

            Those who won our independence believed. . . that public discussion is a political duty, and that this should be a fundamental principle of the American government.  They recognized the risks to which all human institutions are subject.  But they knew that order cannot be secured merely through fear of punishment for its infractions; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law. . the argument of force in its worst form.  Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. 

I will take Brandeis over Clarence Thomas any day.