By JILLIAN AICHER
The historic significance of U.S. libel law—that is, the area of law concerning written or published defamation—can be understood in considering the questioning of free speech in early American laws, such as the Sedition Act of 1798, and in the notable Peter Zenger trial.[i] Supreme Court Justice Clarence Thomas’ February 19th concurring opinion in Kathrine Mae McKee v. William H. Cosby, Jr. identifies current questions on libel law and its proper constitutional underpinnings.
Until 1964, libel law was not defined in federal jurisprudence, insofar as the statutes and case law lacked clear terms governing what content and intent were required for a media outlet’s publication to be considered libelous or defamatory. States, therefore, interpreted libel laws differently and applied different standards in terms of freedom of speech and the necessity for the speaker to demonstrate “actual malice.” The 1964 Supreme Court decision in New York Times Co. v. Sullivan limited the ability of a public figure to successfully sue a media outlet for libel under federal law.[ii] The Court found that the media source must demonstrate “actual malice” in its intended purpose of publication to be found to have libeled a public figure.[iii] This ruling standardized libel law, granting media outlets expanded federal protection against libel claims (resulting in increased freedom of speech) and restricting the potential for public figures to assert libel claims.
On February 19, 2019, Justice Thomas published a concurring opinion in the Kathrine Mae McKee v. William H. Cosby, Jr. case. In his comments, he questioned the constitutional grounds on which the Court in New York Times Co. v. Sullivan had authority to define libel law and the need for the Court’s 1964 ruling.[iv] Justice Thomas accepts the Court’s finding in the 1964 ruling that the New York Times was not guilty of libel, because the newspaper did not name Sullivan (the plaintiff and public figure accusing the media of libel) or publish defamatory content implicating him. He challenges the Court’s decision, however, positing that it could have limited its decision to a finding that there was no evidence to support Sullivan’s claim. He posits that the Court did not have the constitutional authority to expand its ruling create a new category of libel law to apply to the interests of public figures.[v] Justice Thomas suggests that the majority in the Court’s 1964 ruling requiring “actual malice” before a libel claim could be successful against a media defendant “made little effort to ground their holdings in the original meaning of the Constitution.”[vi] In particular, Justice Thomas states that the Court’s decision considered neither the First nor Fourteenth Amendments’ authoritative limits—or lack thereof—on libel cases:
“Although the Court held that its newly minted actual-malice rule was ‘required by the First and Fourteenth Amendments,’ id., at 283, it made no attempt to base that rule on the original understanding of those provisions.”[vii]
Justice Thomas’ concurrence in McKee asserts that the New York Times decision was ungrounded in constitutional support, yielding it a product of political rather than strictly legal understandings of libel. He also claims that the Court’s 1964 decision strayed significantly from the historic “common law of libel,”[viii] vastly shifting, and increasing, the media’s power and authority in a previously-unachievable national manner.
Though Thomas’ review of the constitutionality of the 1964 decision in the New York Times case validly assesses the decision as an interpretation (not direct implementation) of the Constitution, the need for federal standards in libel and defamation cases persists. The New York Times decision established a precedent that has, with good reason and in keeping with the First Amendment, protected the freedom of the press, while also allowing for public figures to assert libel claims where they can demonstrate a publication’s malicious intent. Any reconsideration or opinion that seeks to overturn or revisit the Court’s New York Times ruling could elicit a consequential shift in the processes and output of U.S. media outlets. Justice Thomas’s concurring opinion—along with comments from President Trump during his presidential campaign regarding the restrictiveness of the 1964 libel decision—have already begun to foster national debate on the implications of libel law on First Amendment and Fourteenth Amendment freedoms in the U.S.[ix]
[i] Alfred H. Kelly, “Constitutional Liberty and the Law of Libel: A Historian’s View,” The American Historical Review vol. 74 (Oxford University Press, 1968).
[ii] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
[iv] Kathrine Mae McKee v. William H. Cosby, Jr., 586 U. S. 1 (2019) (Thomas, J concurring opinion).
[ix] Adam Liptak, “Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling,” New York Times, Feb. 19, 2019. https://www.nytimes.com/2019/02/19/us/politics/clarence-thomas-first-amendment-libel.html