On February 19, 2019, United States Supreme Court Justice Clarence Thomas called for a reevaluation of the existing libel and defamation laws grounded in the precedential case of New York Times v. Sullivan.  Justice Thomas’ thoughts appeared in a concurrence to deny Kathrine McKee, a woman who accused Bill Cosby of sexual assault, the opportunity to appeal her defamation case to the U.S. Supreme Court.  McKee claimed that Cosby’s attorney had leaked a defamatory letter about her, but the majority found that due to the well-publicized nature of her allegations against Cosby, she qualified as a public figure, thus requiring proof of actual malice in the publication of the letter under SullivanSullivan is the watershed case elucidating most of the protections the press is afforded in defamation claims by public figures today, so to overrule it would be highly detrimental to news organizations and reporters and by extension to the public.

Sullivan came about during the civil rights movement as a way for civil rights supporters to publish advertisements and gather support without fear of being sued by government officials for defamation when they disliked the unflattering content of those ads or articles.  The triggering event leading to the case was the New York Times publishing a full-page advertisement claiming that the civil rights movement was under siege from the Alabama police force and that Martin Luther King, Jr. had come under attack.  The Times had not vetted the advertisement for accuracy before publishing it, and there were, in fact, numerous inaccuracies. 

L.B. Sullivan was Montgomery, Alabama’s commissioner of public affairs who sued the New York Times alleging libel, despite the fact that he was not mentioned in the advertisement.  Instead, he supervised the police department, whose actions were the subject of the critical advertisement.  He claimed defamation by association with his position.  His attempt to silence the Times was actually a disguised attempt to quiet the discussion surrounding the civil rights movement and avoid giving the movement access to the press.  While the Alabama courts awarded Sullivan $500,000 in damages for “defamation,” the U.S. Supreme Court reversed, finding that the false statements in the ad were not made about Sullivan since he was not mentioned in the ad.  Rather, the ad was an “impersonal attack on governmental operations” that could not be construed to harm Sullivan personally.

The Court, however, went further in its ruling to set parameters for when a public official, as opposed to a private citizen, may bring a successful suit for libel.  A public official is generally prohibited from recovering damages for defamation or libel regarding his or her conduct unless he or she can prove that the statement was made with actual malice.  “Actual malice” requires that a publisher chose to publish information either knowing that information was false or recklessly disregarding the possibility that it may have been false.  The Court set this high threshold for public figures bringing defamation actions to help promote civil rights activists’ access to the press, couching it in terms of a First and Fourteenth Amendment right.

This has been, and continues to be, the rule today for much the same reason—Congress and the courts want to afford all social movements the right to access the press.  Further, news outlets need protection to publish the sometimes controversial ideas of new social movements.  Justice Thomas, however, believes that the states should be the ones to address defamation protections.  He believes that the states are capable of finding the right balance between protecting and encouraging public discourse and providing a sufficient remedy for actual reputational harm.

States, however, are not adequately positioned to make such a determination.  With the age of electronic communication and the internet, most news outlets post their stories online to reach a nation-wide audience.  It is unreasonable to expect a news outlet to determine compliance for what could be 50 or more different laws regarding defamation rights.  The lack of standardization and potential for liability in multiple states over one news story would be an overly complex change to a preexisting law that has remained in effect at the federal level for almost 60 years.

Fortunately for news outlets, Justice Thomas was alone among the nine justices in his concurring opinion.  This means that the libel and defamation laws currently in place will likely remain but indicates Justice Thomas’ desire to revisit them upon seeing an appropriate case.  He does, however, need the support from other justices to even agree to hear a case that he may deem appropriate to revisit Sullivan.  It is therefore likely that the press will continue to be protected by Sullivan, despite Justice Thomas’ misgivings about its constitutional soundness.

This article was written with contribution from Sarah Rothermel, 3rd year law student at Widener Law Commonwealth.