Thomas suggests Supreme Court should revisit landmark libel ruling

Justice Clarence Thomas on Tuesday suggested the Supreme Court should revisit its 1964 ruling from a landmark First Amendment case that made it more difficult for public figures to win libel lawsuits.

Thomas, a member of the court’s conservative wing, called the New York Times Co. v. Sullivan ruling and related ones “policy-driven decisions masquerading as constitutional law.”

In its decision, he said, the court issued a “federal rule” that created a standard that's almost impossible to meet.


The 1964 ruling puts the onus on public figures to show that statements about them were made with malice in order to sue for defamation.

Thomas's remarks came in an opinion concurring with the court’s decision Tuesday not to hear an appeal from one of Bill Cosby's accusers, whose defamation case against the comedian was dismissed by a lower court. The lower court found that Katherine McKee thrust herself to the forefront of the public debate over sexual assault allegations against Cosby by sharing her own accusations with a reporter.

Thomas said he agreed with the court's decision not to review whether McKee is a limited-purpose public figure, but said the court should review its prior decisions that require them to ask that question.

“If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we,” Thomas said.

The New York Times case stemmed from a libel lawsuit the Montgomery, Ala., commissioner of public affairs brought against the newspaper after it ran a full-page advertisement in support of the civil rights movement and legal defense of Martin Luther King Jr.

The ad said the movement was facing an unprecedented wave of terror and that “truckloads of police” in Montgomery “armed with shotguns and tear-gas” had surrounded a college campus after a student demonstration.

Thomas said the court in that ruling made no attempt to base its “actual malice” rule on the original understanding of the First and 14th Amendments.

"The constitutional libel rules adopted by this Court in New York Times and its progeny broke sharply from the common law of libel, and there are sound reasons to question whether the First and Fourteenth Amendments displaced this body of common law,” he wrote in his 14-page opinion.