Justice Clarence Thomas on Tuesday called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment to make it hard for public officials to prevail in libel suits.
He said the decision had no basis in the Constitution as it was understood by the people who drafted and ratified it.
“New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote.
Justice Thomas, writing only for himself, made his statement in a concurring opinion agreeing that the court had correctly turned down an appeal from Kathrine McKee, who has accused Bill Cosby of sexual assault. She sued Mr. Cosby for libel after his lawyer said she had been dishonest.
An appeals court ruled against Ms. McKee, saying that her activities had made her a public figure and that she could not prove, as required by the Sullivan decision, that the lawyer had knowingly or recklessly said something false. Ms. McKee asked the Supreme Court to review the appeals court’s determination that she was a public figure.
Justice Thomas wrote that he agreed with the court’s decision not to take up that question. “I write to explain why, in an appropriate case, we should reconsider the precedents that require courts to ask it in the first place,” he wrote.
In Justice Thomas’s view, the First Amendment did nothing to limit the authority of states to protect the reputations of their citizens and leaders as they saw fit. When the First Amendment was ratified, he wrote, many states made it quite easy to sue for libel in civil actions and to prosecute libel as a crime. That was, he wrote, as it should be.
“We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” Justice Thomas wrote of the Sullivan decision. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”
The events leading to the Sullivan decision test that assertion. The case arose from an advertisement in The Times seeking support for the civil rights movement. The ad contained minor errors.
L.B. Sullivan, a city commissioner in Montgomery, Ala., who was not mentioned in the ad, sued for libel. He won $500,000, which was at the time an enormous sum. It was one of many suits filed by Southern politicians eager to starve the civil rights movement of the oxygen of national attention. They used libel suits as a way to discourage coverage of the movement by national news organizations.
Against this background, and animated by an urge to protect the American public’s ability to assess the situation in the South for itself, the Supreme Court unanimously ruled for The Times and revolutionized American libel law.
Justice Thomas’s statement came in the wake of complaints from President Trump that libel laws make it too hard for public officials to win libel suits.
“I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” Mr. Trump said on the campaign trail. “We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”
Again, Trump wants the free press in this country gone. Justice Thomas agrees with him. This is a signal that the Roberts Court wants this case and most likely has four, if not five votes for it. Again, should anything happen to Justices Ginsburg or Breyer with Trump in the Oval Office, you can kiss America goodbye.
So what case does Justice Thomas want?
There's a method to this madness, after all.
The family of the Kentucky teen who was involved in an encounter with a Native American advocate at the Lincoln Memorial last month filed a defamation lawsuit against The Washington Post on Tuesday, seeking $250 million in damages for its coverage of the incident.
The suit alleges that The Post “targeted and bullied” 16-year-old Nicholas Sandmann in order to embarrass President Trump. Sandmann was one of a number of students from Covington Catholic High School in Kentucky who were wearing red “Make America Great Again” hats during a trip to the Mall when they encountered Nathan Phillips, a Native American activist.
News accounts, including in The Post, and videos of their encounter sparked a heated national debate over the behavior of the participants.
“In a span of three days in January of this year commencing on January 19, the Post engaged in a modern-day form of McCarthyism by competing with CNN and NBC, among others, to claim leadership of a mainstream and social media mob of bullies which attacked, vilified, and threatened Nicholas Sandmann, an innocent secondary school child,” reads the complaint.
There's no coincidence that Justice Thomas all but asked for this case to be handed to SCOTUS. A major ruling in favor of a $250 million lawsuit against the Post would essentially put every news outlet in the country out of business. The argument will be that it was the the Evil Fake News Media that destroyed Nicholas Sandmann's private life by defaming him, and that the Post has to pay up. Thousands of lawsuits will follow.
Say goodbye to social media and this blog, too.
No wonder then that
media outlets like CNN are scrambling to hand over their 2020 political coverage to Trump staffers in order to stay alive. They see the writing on the wall.
CNN announced on Tuesday it has hired longtime Republican operative Sarah Isgur as political editor, charged with shaping its 2020 campaign coverage.
According to a CNN spokesperson, Isgur, who most recently worked as the Department of Justice’s main spokesperson under then-Attorney General Jeff Sessions, will coordinate the network’s political coverage for the 2020 election cycle on TV and on CNN’s website. Isgur starts work next month, and will not be involved in coverage of DOJ. She will occasionally appear on TV.
Isgur’s LinkedIn page indicates she has no journalism experience. She has, however, worked for a variety of right-wing organizations and campaigns, including the Carly Fiorina and Mitt Romney presidential bids, the Republican National Committee, and a Ted Cruz US Senate campaign.
Coming as it does in the wake of a presidential cycle in which the mainstream media’s fixation on Hillary Clinton’s emails (among other issues) was widely criticized, news of Isgur’s hiring sparked concerns about the direction CNN is taking heading into 2020.
The Washington Post reported that during an early 2017 Oval Office meeting with President Donald Trump, Isgur — who was critical of Trump during the 2016 campaign — “kowtowed to Trump” and pledged loyalty to his agenda as a condition of getting the job as Sessions’ spokesperson.
Isgur’s hire was first reported by Politico, which noted that “while it is common for departing administration officials to join cable news networks as analysts or contributors, it is less common for them to oversee news coverage.”
On Tuesday evening, a CNN spokesperson emailed Vox and said they “just wanted to be super clear – Sarah is not leading, overseeing, or running political coverage.”
“She is helping to coordinate coverage across TV and Digital – she is one of several editors,” the spokesperson added, going on to characterize Isgur’s role as making sure that stories are featured on the right shows and articles get posted online at the right time.
Except of course it means Isgur gets to decide what stories end up on CNN's website and where, which is pretty much exactly what "shaping CNN's 2020 political coverage" means.
We warned y'all about this, but hey.