When Supreme Court Justice Clarence Thomas called on Feb. 19 for a reconsideration of the 1964 case New York Times v. Sullivan, probably only Supreme Court historians and journalists cared.
That’s because the case was a landmark for First Amendment rights, setting the precedent for how journalists can talk about public figures. The case decided public figures, like politicians and celebrities, have a higher burden to prove libel.
That standard, which protects journalists and the essential work that we do, might be in jeopardy.
First, a little background. Libel is written defamation, a published false statement that damages someone’s reputation. Public figures suing a writer or publication for libel have to prove that the statement was false and made with actual malice, meaning an intent to harm them. Private individuals don’t have to prove malice.
The thinking here is public figures benefit in some way from their fame and the public’s attention. In order to safeguard free speech and free press, then, public figures have a higher bar to prove negative publicity is actually criminal. Private individuals don’t benefit from routine publicity, so they only have to prove something is a lie to collect damages.
The New York Times case established the “actual malice” standard. The newspaper had printed an ad in support of Martin Luther King Jr. that said he had been arrested by Alabama police seven times, when in fact it had been four times. An Alabama official sued for libel. The justices voted unanimously in favor of the New York Times, writing that public figures suing for libel had to prove the publication knew it was false before publishing it.
Overturning a long-standing precedent like this case is like pulling a brick out of the middle of a wall — it affects all the court decisions made after it. Sometimes that’s a good thing; Brown v. Board of Education overturned long-standing precedent that sanctioned racist laws. But other times changing precedent reflects transient political winds more than a core societal shift in how we understand the Constitution. Those changes threaten, not restore, Constitutional rights.
That’s what Thomas’s statement is — a threat to the freedom of speech and freedom of press on the basis of current political tides. It echoes President Trump’s repeated calls to change libel laws, particularly after unfavorable newspaper coverage of him hit the racks.
That shows what’s really at stake here. If we weaken judicial or legislative standards for libel, we weaken the power of the press to call out authority figures for their abuses or failures. This holds true at a local level as well as national one; foundational changes to libel law could affect how the Branding Iron covers the University of Wyoming administration and Board of Trustees.
In the words of Newton Lee, “Journalists should be watchdogs, not lapdogs.” If we allow these libel changes to happen, bring out the scented shampoo and sign us up for the Westminster Kennel Club, because we won’t be able to fulfill our essential duty to democracy.
