With his stunning plea for reconsideration of New York Times v. Sullivan — the landmark free-speech decision insulating the press, and speakers in general, from most libel actions — Justice Clarence Thomas has … performed a public service. Not necessarily because he’s right, but because there’s a serious issue here.
To see why, imagine that a lawyer, a blogger, a talk-show host or a newspaper lies about you — and in the process destroys your reputation. Your accuser might say that you are a pedophile, a drug peddler, an arsonist or a prostitute. In an hour, the lie goes around the world.
If you count as a public figure, does the Constitution really mean that the law cannot provide you with any kind of redress?
Thomas doesn't think so. He was writing in a case brought by Kathrine McKee, who accused Bill Cosby of rape. Cosby's lawyer responded to her accusation by trying to destroy her character. Among other things, he called her a liar. McKee brought suit, saying that she had been defamed.
Because McKee was involved in a public controversy, she counted as a public figure. Under New York Times v. Sullivan, decided in 1964, she could not win unless she could demonstrate that Cosby's lawyer had "actual malice," which means that he knew he was lying, or that he acted "with reckless indifference" to the question of truth or falsity.
It's really hard to demonstrate that, so McKee's lawsuit was bound to be dismissed.
Thomas is an “originalist”; he believes that interpretation of the Constitution should be settled by reference to the “original public meaning” of its terms. Thomas offers considerable evidence that at the time of ratification, those who wrote and ratified the Bill of Rights were comfortable with libel actions — and that they did not mean to impose anything like the “actual malice” standard.
A defamed individual (including a public figure) needed only to prove that a written publication was false and that it subjected him to hatred, contempt or ridicule. And for 170 years, the Supreme Court never held that the First Amendment forbids the states from protecting people from libel.
Thomas concludes that New York Times v. Sullivan, and the many subsequent decisions implementing it, were "policy-driven decisions masquerading as constitutional law."
There are strong objections to originalism, of course. But whatever your theory of constitutional interpretation, it is hardly obvious that the First Amendment forbids rape victims from seeking some kind of redress from people who defame them.
Suppose Cosby's lawyer did not actually know that he was lying. Suppose too that he was clearly negligent, in the sense that any reasonable person would have known that what he was saying was false. Why does the free-speech principle prohibit states from allowing McKee to demand a retraction and some level of compensation?
The standard answer, offered in New York Times v. Sullivan itself, is that speakers need “breathing space.” For all of us, the prospect of libel actions could have a “chilling effect” on freedom of speech. If we are dealing with public figures — including politicians — democracy itself requires what the Supreme Court called an “uninhibited, robust, and wide-open” system of free expression, in which speakers and writers are not deterred by the prospect of lawsuits.
Fair enough. But some kind of chilling effect is not the worst idea, because it reduces the risk that falsehoods will destroy people's reputations. And in this context, the idea of democracy is a double-edged sword. If a speaker lies about a politician, and destroys her reputation in the process, democracy is not exactly well-served.
Thomas demonstrates that this point has a strong historical pedigree, for "the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels." As one early commentator put it, "the people may be deceived and reject the best citizens to their great injury." In the current era, when damaging falsehoods can spread widely in a matter of seconds, that risk is greater than ever before.
To be sure, there's an elephant in this particular room: President Donald Trump's frequent denunciations of the press as the "Enemy of the People." (It's best not to throw around the term "neo-Nazi," but it describes the president's language in this case.)
In light of the background set by Trump's dangerous rhetoric, this might not be the best time to call for reducing the constitutional protection given to speech. And in my view, Thomas goes too far in suggesting that states "are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm." There is a real danger that state officials, unenthusiastic about public criticism, would strike at the heart of freedom of speech.
But Thomas is right to point out that the constitutional foundations of New York Times v. Sullivan are not entirely firm. New and creative thinking, designed to protect people from having their reputations shattered, is very much in order.
Consistent with the national commitment to “uninhibited, robust, and wide-open” public discourse, it should be possible to provide remedies for people like Kathrine McKee — perhaps a right to retraction, perhaps appropriate (and appropriately limited) monetary compensation. It would be ironic if New York Times v. Sullivan itself had a chilling effect on serious discussions of reforms of that kind.
Cass Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”