Justice Clarence Thomas drew a collective gasp from First Amendment advocates last month when he issued a broadside attack against the landmark libel decision in New York Times v. Sullivan.

Thomas has usually been a staunch supporter of the First Amendment in his 27 years on the Supreme Court. He has authored and joined Supreme Court opinions broadly applying the First Amendment to protect hate speech, odious speech and the speech rights of sex offenders. Thomas has read the First Amendment to bar limits on campaign expenditures, and voted to strike down a range of laws and regulations that he found to infringe the First Amendment’s broad protection of speech.

Thomas’ assault on Sullivan was thus unexpected and alarming.

The 1964 Sullivan opinion by Justice William J. Brennan saw the First Amendment as “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” and held that it imposes additional evidentiary burdens when public officials—later extended to public figures—bring libel claims against their critics. The ruling remains widely regarded as one of the “best and most important” the Supreme Court “has ever produced in the realm of freedom of speech.”

Even the platform for Thomas’ attack on Sullivan was unusual, attached to a unanimous decision not to hear a routine libel appeal. The appeal involved the case of Kathrine McKee, who had accused Bill Cosby of rape.

When Cosby’s lawyer responded by calling her a liar, she sued. Her libel claim was thrown out after the lower courts found McKee to be a “public figure” who could not meet the higher burdens imposed by Sullivan. Thomas agreed that McKee’s designation as a public figure did not warrant review, but he took the occasion to urge the court to reconsider whether the First Amendment limits the scope of libel law at all.

The Holding Renounced by Thomas

The Sullivan case arose out of an advertisement placed in the New York Times in 1960 that criticized unnamed authorities in Montgomery, Ala., for violating the constitutional rights of protesters in the movement to end segregation.

Montgomery’s commissioner of public affairs, L.B. Sullivan, sued over the ad’s depiction of police surrounding a college campus and locking a dining hall to starve student demonstrators “into submission.” Even though the ad never mentioned Sullivan, he easily won a substantial libel judgment from an Alabama jury.

Sullivan’s case was just one of many aimed at keeping Northern reporters from exposing to the rest of the country what was happening in the South.

The Supreme Court recognized the capacity of these libel lawsuits to suppress truthful reporting—that just the threat of litigation can chill speech. And, because “erroneous statement is inevitable in free debate,” the court found that the First Amendment’s protection of speech and press necessarily limited a state’s capacity to allow libel claims against good faith reporting on the conduct of public officials, even when that reporting occasionally turns out to be wrong.

Times v. Sullivan does not prevent a public official from suing for defamation, but it does require there to have been a “calculated falsehood” for that official to win. To adequately protect speech and press, Sullivan places the burden on a public official to establish that the defendant published a statement it knew to be false, or recklessly disregarded whether it was false or not.

Justice Thomas’ gripe is that this ruling fails to apply the First Amendment “as it was understood by the people who ratified it.” He notes that criminal libel laws were common in the colonies and the law of libel was left entirely to the states long after the First Amendment was adopted. In his view, the Founding Fathers could not have intended to impose any unique burden on a public official who sues for libel.

A rejoinder quickly penned by Brennan biographers Lee Levine and Stephen Wermiel, rebuts Thomas’ assertion that the Sullivan holding is not “grounded in the constitution’s original meaning.” As they observe, the Sullivan decision itself analyzes the English common law history of seditious libel (criticism of public officials) and points to evidence that James Madison, Thomas Jefferson, and other Founding Fathers intended the constitutional protection of speech and press to prohibit such punishment for criticizing public officials here.

Dangers in Thomas’ Approach

According to Justice Thomas’ new view, the Sullivan ruling is nothing more than a “policy-driven decision[] masquerading as constitutional law.” He argues that states themselves “are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.” But this ignores the danger that state officials would pounce on criticism, as the very facts of the Sullivan case reflect.

The Sullivan court understood what escapes Justice Thomas—that many libel suits are brought not to protect reputation but to silence. A rejection of Sullivan will surely promote more litigation and silence criticism of those in power, a real danger in a democracy.

Thomas’ attack on Sullivan is also troubling in its apparent effort to propel President Trump’s repeated calls to reform libel law, and all the more so coming on the heels of press reports highly critical of the partisan activities of Thomas’ wife.

In this context, Justice Thomas’ reversal on a significant constitutional question feeds an impression of judges as politicians in robes. It is likely to have a corrosive effect on public confidence in the judiciary as an independent third branch of government, and this too is a danger in a democracy.

Author Information

David A. Schulz, senior counsel at Ballard Spahr LLP, has defended the rights of journalists and news organizations for more than 35 years—litigating libel, privacy, access, and newsgathering claims in 20 states. He is a clinical lecturer at Yale Law School and serves as co-director of the school’s Media Freedom and Information Access Clinic.