In 2019, Justice Clarence Thomas raised the prospect of overturning one of the most consequential free speech decisions ever made. New York Times Co. v. Sullivan is a 1964 landmark case that strengthened First Amendment protections by enabling journalists and writers, from top national outlets to local newspapers and bloggers, to pursue the truth without being afraid of being sued. In his book Murder the Truth, author David Enrich explores how Justice Thomas' words coincide with a surge in legal threats and litigation against journalists and media outlets.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy
Chapter 1: What is the significance of New York Times Co. v. Sullivan?
and that you were defamed, you also need to prove that whoever wrote those words or spoke those words did so knowing that what they were saying was false, in other words, lying, or that they acted with reckless disregard for the accuracy of what they were writing. And that set a high bar for public figures and public officials to clear, and that was by design.
The Supreme Court wrote in Sullivan and then in some subsequent decisions that there is a great public interest that dates back to the founding of the United States and having unfettered speech and debate and argument about matters of public importance in this country. And their argument was that if you have
potentially ruinous litigation hanging over your head every time you speak critically about a powerful person, you're going to self-censor or you're going to be sued into oblivion. And both of those outcomes ran counter to what the First Amendment guaranteed about free speech and freedom for the press.
Okay, just to slow down a little bit, one point of contention, or it seems like over the course of many lawsuits, something that is often debated is what is considered a public figure. So in this case, what is considered a public figure?
Well, it's complicated and it depends on the circumstances. So in the Sullivan decision, it didn't deal with public figures at all. It was simply public officials. So in other words, someone who held elected office or had a real role in government. Over a couple of subsequent decisions, that group of people was expanded to include all sorts of public figures.
So that could be someone who is, say, a billionaire. or a celebrity, or a university president. It could be someone, if you're a community newspaper writing about your town's affairs, it could be, say, a big real estate development company. It could be someone who is an outspoken advocate for or against abortion rights, for example.
It could be someone who has kind of injected themselves into a public controversy that wouldn't necessarily be considered a public figure, but maybe is circulating a petition in your town or your city that's trying to do something controversial. And even in occasional circumstances, it can be someone who did absolutely nothing to seek out the spotlight. And the example that jumps to mind here is
is, for example, an air traffic controller who was on duty when there was a plane crash. And that's someone who is a private person, had never sought out fame or notoriety, but yet because of their role in a public – disaster could end up getting scrutinized and could even end up getting defamed.
And the courts have ruled over and over again that even though that subjects private people to potential reputational damage, it's really important that the public and the media be able to speak freely and investigate freely and criticize freely. when matters are in the public domain.
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Chapter 3: How has President Trump influenced legal threats against journalists?
Well, Thomas, in February 2019, took a case that was never going to be heard by the Supreme Court and decided as the Supreme Court rejected an appeal and said it would not hear the case. He took that opportunity to issue an opinion that said, in the future, we should take a better case and we should use this better case to overturn Sullivan.
And his critique was from the perspective of someone who believes in constitutional originalism, which means basically that the Constitution and the Bill of Rights should be interpreted as the framers of the Constitution meant them to be interpreted. That's a tricky thing with the First Amendment, which is 45 words long.
And there's not a whole lot of evidence, contemporary evidence from the time about what the framers actually meant. And but Thomas's argument was that if you look back at many, many years of English common law, there was no evidence that people in England or the framers of the Constitution wanted libelous speech to be protected by the First Amendment.
Now, there are a bunch of problems with that argument. There are, for example, records that the framers did want that kind of speech to be protected and felt very strongly that people have the right and the ability to speak freely about their leaders without fear of being punished.
But the biggest problem is that looking at the First Amendment through that narrow kind of historical lens means that you're not allowing for any change in the country or in the political or legal climate in the country over an intervening period of centuries, which I think most legal scholars would agree that that is not the right way to look at the Constitution.
It's not the right way to look at the libel law.
And Robert Bork, who is a very conservative judge and kind of one of the intellectual forefathers of originalism, himself was a huge fan of Sullivan and wrote about it a lot in ways that made clear that you can take an original meaning of the First Amendment and you should still believe in Sullivan because the framers, what they wanted was to have an environment where the public and reporters and everyone else believed.
And this is according to Bork, not me. It was important to kind of update your understanding of how the First Amendment works and how it applies. And so he, for one, was a huge fan of Sullivan, wrote about it in kind of this adoring way. And so Thomas's critique of it that emerged in 2019 was, I think, a real surprise to a lot of people.
I just want to get an understanding of what his opinion kind of means in the context of the entire Supreme Court. Justice Neil Gorsuch has also expressed some skepticism too, right? What has he said?
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