Clarence Thomas backs Trump's call for changing defamation law to ease suits against media

Fox News ^ | 19 FEB 2019 | Gregg Re

[E. Pluribus Unum]

Justice Clarence Thomas, in a concurring opinion released Tuesday, called for reversing decades of jurisprudence that has made it harder for public figures to sue media outlets and other organizations for defamation -- restrictions that were premised, he said, on a series of "policy-driven decisions masquerading as constitutional law."

Thomas' opinion comes against the backdrop of President Trump's repeated calls to make it easier to sue for defamation. Last weekend, Trump reacted to a "Saturday Night Live" skit about his southern-border emergency declaration by asking on Twitter, "How do the Networks get away with these total Republican hit jobs without retribution? Likewise for many other shows? Very unfair and should be looked into."

And last December, Trump wrote on Twitter: "Isn’t it a shame that someone can write an article or book, totally make up stories and form a picture of a person that is literally the exact opposite of the fact, and get away with it without retribution or cost. Don’t know why Washington politicians don’t change libel laws?"

...

Ordinarily, to prove defamation has occurred, a private individual only has to to show that a defendant negligently failed to exercise reasonable care in spreading a provable falsehood that has harmed his reputation. But in 1964, the Supreme Court ruled in New York Times Co. v. Sullivan that public officials must meet a higher "actual malice" burden. This means they must prove that the defendant spread a falsehood either intentionally or with reckless disregard for the truth.

[Dogbert41]

It’s propaganda. The Nazis did it to the Jews for years before they began rounding them up. Keep your powder dry.

[HiTech RedNeck]

How does a concerned body politic do this without jumping out of the frying pan into the fire — without creating a Ministry Of Truth with de jure authority?

If We The People ignore the controversial issues, We The People deserve what we get. Granted. But there ought to be some other way to get the word out. Never in history before now was it so easy to get ones $0.02 into the ether.

[Sa-teef]

Definition of libel (Entry 1 of 2)

1a : a written statement in which a plaintiff in certain courts sets forth the cause of action or the relief sought

b archaic : a handbill especially attacking or defaming someone

2a : a written or oral defamatory statement or representation that conveys an unjustly unfavorable impression

b(1) : a statement or representation published without just cause and tending to expose another to public contempt

(2) : defamation of a person by written or representational means

(3) : the publication of blasphemous, treasonable, seditious, or obscene writings or pictures

(4) : the act, tort, or crime of publishing such a libel

More than coincidental that Melania just won the second of two libel suits against British news organizations. If you are sloppy with the truth, disregard the truth as an average person would understand and view it, you are guilty of libel/defamation in the UK. We are talking million dollar settlements.

Get your facts straight and you have little to worry about. Make it up as you go and you place yourself at risk, and just because the person you are lying about is a public figure will soon no longer protect you.

[nathanbedford]

…a series of "policy-driven decisions masquerading as constitutional law."

I think on balance (repeat: on balance ) that Thomas has the Constitution right but probably he has got the public policy wrong.

If one is an originalist one must ask what was the meaning of the First Amendment when it was adopted? Clearly it contemplated torts against individuals for libeling public officials. So, if one is a originalist as I claim to be, one has to come down on the side of original intent and declare with Thomas that the Constitution has been changed and not by the 14th amendment, but by improper amendment by nine.

But, as public policy I just do not want to add one more ounce of power to the already too powerful public officials who rule over us. In the age of Donald Trump the clefts are so wide and so deep that it is difficult to get clear thinking if one analyzes the value of such a public policy only in the context of his presidency. Let us consider with the benefit of hindsight the public policy implications during the presidency of Bill Clinton.

Could we have raised the allegations when they first came out of his dalliance with Monica Lewinsky if we were reasonably apprehensive of being sued for libel? Would not all of us on Free Republic have been vulnerable? When we did not know that the DNA was there to prove our case, could we have so persistently pursued this issue?

Let us consider the case of Bill and Hillary Clinton and the whole Whitewater investigation, could those issues have been alleged in the context of vulnerability for libel or slander? Many of them were never proved up to the satisfaction of the independent counsel. Could we have written books alleging Clinton corruption for the sale of American foreign policy when she was Secretary of State and Bill was paid half a million dollars a speech?

As an originalist, I would come down on the side that Thomas advocates over my own policy preferences but I know that I am in a distinct minority when it comes to the prevailing will about how to interpret the Constitution and I suspect that, as with much of the Constitution today, original intent ain't got nothin' to do with nothin'.

[a fool in paradise]

Barack Obama imprisoned two filmmakers (the “youtube director who inspired the Benghazi attack” - per Sec. of Hate Hillary Clinton, and Dinesh D’Souza).

There were other members of the media who were mistreated in the Obama error.

The narrative that Trump is Hitler does not fly.

[a fool in paradise]

>> But in 1964, the Supreme Court ruled in New York Times Co. v. Sullivan that public officials must meet a higher “actual malice” burden. This means they must prove that the defendant spread a falsehood either intentionally or with reckless disregard for the truth.

Rumors of a Russian PeePee video
Forged Waco National Guard memos
“exploding” gas tanks on NBC

So much fake news, so much yellow journalism

[New Jersey Realist]

I totally agree. The Press has freedom of speech, just like citizens, but they must be held to a higher standard because of their influence. If they came out and said that Trump is a (name it) and it is not true there must be severe consequences. If I lie to Congress I am committing a crime and should be punished. If the media lies there should be a stiffer penalty. Oh, by the way, if Congress or politicians lie, they always get away with it! Hmmm.

[conservatism_IS_compassion]

According to Thomas, though, the fact that the framers opposed criminal punishment for criticisms of public officials did not necessarily mean they opposed providing an accessible civil defamation remedy for those politicians. In fact, Thomas said, the founders consistently opposed using federal law to override state common law, which controlled defamation actions at the time.

"Far from increasing a public figure’s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels," Thomas wrote. "Libel of a public official was deemed an offense 'most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.'"

. . . One of the key rationales for setting a higher bar for public officials to sue for defamation relates to their perceived ability to quickly quash misinformation on their own -- an ability that some observers say is fading in the age of blogs and around-the-clock news coverage.

Thomas is not the only prominent conservative justice to voice disdain for the Sullivan decision. The late Justice Antonin Scalia publicly railed against the court's ruling in that case, saying it was abhorrent and constitutionally baseless.

Fascinating! Sullivan was a 9-0 decision by the Warren Court in 1964. Two things really bother me about it, besides the above:

1. The Mr. Sullivan in question, a Southern Democrat, was altogether too tempting a target to create a firm precedent on. And,

2. Water under the bridge since 1964 includes almost all criticism of “bias in the media” in my lifetime. Such criticism as we are now used to didn’t really start until Walter Cronkite turned against the Vietnam War - and Reed Irvine’s Accuracy In Media organization dates only to 1969.

The facts before SCOTUS in ’64 did not include any antitrust considerations, but the reality is that "People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices” (Adam Smith) - and all major journalism outlets have been meeting together continually since memory of living man runneth not to the contrary. If in no other way, they meet virtually over the wire services.

The resulting conspiracy has produced the propaganda campaigns in favor of journalism’s image of superior “objectivity,” and against society (a.k.a. “the market”). And in favor of big government. Monopoly journalism which promotes big government is a parody of the intent of the First Amendment that government not aggrandize itself by controlling journalism.

[conservatism_IS_compassion]

Verry interesting! Bookmarked.

[conservatism_IS_compassion]

Let us consider with the benefit of hindsight the public policy implications during the presidency of Bill Clinton.

Could we have raised the allegations when they first came out of his dalliance with Monica Lewinsky if we were reasonably apprehensive of being sued for libel? Would not all of us on Free Republic have been vulnerable? When we did not know that the DNA was there to prove our case, could we have so persistently pursued this issue?

Let us consider the case of Bill and Hillary Clinton and the whole Whitewater investigation, could those issues have been alleged in the context of vulnerability for libel or slander? Many of them were never proved up to the satisfaction of the independent counsel. Could we have written books alleging Clinton corruption for the sale of American foreign policy when she was Secretary of State and Bill was paid half a million dollars a speech?

This is a topic worth exploring. My first reaction to your question is to want to ask your same question back at you after substituting “the MSM” wherever you said, “we.” The answer being, of course, “That question is moot, since “the MSM” had no intention of doing any of the above. Because (solely) of which fact, Hillary Clinton - blatantly unsuitable for office as she is - nearly won the presidency in ‘16.

This leaves us with the issues I raised in reply # 9. IMHO Sullivan empowers a political cartel. One which is only nominally different from precisely what the freedom of speech/press clause of the First Amendment explicitly forbids.

Granted that it did not create that cartel, which had long existed before 1964.

So, I dunno. What do you think of #9?

[nathanbedford]

Having let this mellow for about 24 hours and now rereading my reply and your very good reply, my immediate reaction is, this is simply not the hill for an originalist to die on.

In reading your reply it struck me that the world has turned over completely since 1964. Journalism has undergone a revolution because of technology and because of ideology. The first is driving them to bankruptcy and the second makes them intellectually bankrupt. But most important, technology has created a whole new world of journalists. In effect, you and I are journalists, we are publishing our opinions on this forum and we are liable to be read by tens of thousands. This was simply unimaginable when the Constitution was written or even as late as 1964.

My first understanding of biased journalism occurred when I was a college freshman during the election of John F. Kennedy. It was clear to me by 1964 that journalism simply meant bias on the hoof.

I've often told story here of attending a rally for Barry Goldwater in 1964 in which the overflow crowd, similar to the overflow crowds that can't get into Trump's rallies, were outside voicing their support for Goldwater. When I got home to watch the 11 o'clock news these very same people were presented by the magic of television cameras to be protesters against Goldwater.

I have been a skeptic and really, a cynic about "journalism" ever since.

So, I like the idea of a citizen being able to do the job that journalists decline to do, that is bringing politicians to account. So as I said, I think Thomas got the Constitution right but, I think, the public policy wrong. In any event, it is good that the politicians now do not have an ability to quickly quash allegations against them.

I suppose I am really an old-fashioned liberal, which means an old-fashioned or paleo-conservative, when it comes to our fundamental rights. I do wonder whether the definition of "public figure" has grown too broad and leaves those who are not actually politicians defenseless against slanders. As far as politicians go, slander and satire are good for their souls, God knows they have hubris enough to withstand it.

[conservatism_IS_compassion]

it is good that the politicians now do not have an ability to quickly quash allegations against them.

. . . As far as politicians go, slander and satire are good for their souls, God knows they have hubris enough to withstand it.

But what if Donald Trump did not have a thick skin???

Ronald Reagan would not have run for office if present-day “campaign finance reform” laws had been in effect in 1980. In a sense, Trump is actually a super-Reagan because he had the ability to be his own financial angel. That shouldn’t be necessary, but now it is - because “the MSM” got McCain-Feingold passed. The people at large weren’t demanding it.

Viewed from the perspective that we actually need Term Limits for all political offices, your point seems to be limited.

During the recent Senate Judiciary Committee hearings, then-Judge Kavanaugh must have wondered exactly where to get some of that there “hubris” and "ability to quickly quash allegations” of which you speak.

. . . I do wonder whether the definition of "public figure" has grown too broad and leaves those who are not actually politicians defenseless against slanders.

George Zimmerman would be an example of that. The fact that the idea of calling an anonymous minor named Sandmann a “public figure” is even spoken out loud tells you that the definition of “public figure” is way out of bounds.

[conservatism_IS_compassion]

When I got home to watch the 11 o'clock news these very same [Goldwater supporters] were presented by the magic of television cameras to be protesters against Goldwater.

I have been a skeptic and really, a cynic about "journalism" ever since.

I’ve been cogitating on the subject of “cynicism” for a while. IMHO cynicism is actually a doorway to naiveté. For if you are cynical about “A,” you are almost forced to be naive about the opposite of “A.”

For example, Thomas Paine in the opening paragraphs of Common Sense makes the point that “society” and “government” are in a real sense opposites. Socialism is, IMHO, cynicism directed at society. And it is naiveté towards government. And it is not obviously possible to separate the two.

American “conservatism,” OTOH, is skeptical enough about society to believe that government is necessary, but also strongly skeptical of the need for any growth in government. I put scare quotes around “conservatism” because what we want to conserve is actually the ability to change. Freedom to do different things, and old things in new ways. But not via government.

[PGalt]

Yes, very interesting. Thanks very much for the ping/post. BUMP!