Thomas and Gorsuch call for Reconsidering Libel/First Amendment ruling (1 Viewer)

[V Chip]

Two Justices Say Supreme Court Should Reconsider Landmark Libel Decision (Published 2021)

Justice Neil M. Gorsuch added his voice to that of Justice Clarence Thomas in questioning the longstanding standard for public officials set in New York Times v. Sullivan.

www.nytimes.com

Two justices on Friday called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment to make it hard for public officials to prevail in libel suits.

One of them, Justice Clarence Thomas, repeated views he had expressed in a 2019 opinion. The other, Justice Neil M. Gorsuch, offered fresh support for the view that the Sullivan decision and rulings extending it warranted a reassessment.

Both justices said the modern news media landscape played a role in their thinking about the actual malice doctrine announced in the Sullivan case. That doctrine required a public official suing for libel to prove that the offending statements were made with the knowledge they were false or with serious subjective doubt about their truth — a stricter standard than is applied to cases brought by ordinary people. The doctrine was expanded in later court rulings to cover public figures, not just public officials.

I found this part of Gorsuch's dissent interesting.

The Bill of Rights protects the freedom of the press not as a favor to a particular industry, but because democracy cannot function without the free exchange of ideas. To govern themselves wisely, the framers knew, people must be able to speak and write, question old assumptions, and offer new insights. “If a nation expects to be ignorant and free . . . it expects what never was and never will be. . . . There is no safe deposit for [liberty] but with the people . . . [w]here the press is free, and every man able to read.”
[...]
Since 1964, however, our Nation’s media landscape has shifted in ways few could have foreseen. Back then, building printing presses and amassing newspaper distribution networks demanded significant investment and expertise. [...] Broadcasting required licenses for limited airwaves and access to highly specialized equipment. Comparatively large companies dominated the press, often employing legions of investigative reporters, editors, and fact-checkers. But “[t]he liberty of the press” has never been “confined to newspapers and periodicals”; it has always “comprehend[ed] every sort of publication which affords a vehicle of information and opinion.” And thanks to revolutions in technology, today virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world.
[...]
The effect of these technological changes on our Nation’s media may be hard to overstate. [...] It’s hard not to wonder what these changes mean for the law. In 1964, the Court may have seen the actual malice standard as necessary “to ensure that dissenting or critical voices are not crowded out of public debate.” [...] But if that justification had force in a world with comparatively few platforms for speech, it’s less obvious what force it has in a world in which everyone carries a soapbox in their hands. Surely, too, the Court in 1964 may have thought the actual malice standard justified in part because other safeguards existed to deter the dissemination of defamatory falsehoods and misinformation.

I find that interesting, because to me both are arguing in direct opposition of their supposed deepest Constitutional beliefs -- that of Originalism. The two most devout originalists on the court are now saying basically that the founders and the prior court decisions could not have forseen the way things would change, and thus we need to rethink the freedoms of the press and the landmark cases that have decided First Amendment protections and handling libel suits.

Is it just me, or is that really the essence of what they are arguing?

 

[cuddlemonkey]

Two Justices Say Supreme Court Should Reconsider Landmark Libel Decision (Published 2021)

Justice Neil M. Gorsuch added his voice to that of Justice Clarence Thomas in questioning the longstanding standard for public officials set in New York Times v. Sullivan.

www.nytimes.com

I found this part of Gorsuch's dissent interesting.


I find that interesting, because to me both are arguing in direct opposition of their supposed deepest Constitutional beliefs -- that of Originalism. The two most devout originalists on the court are now saying basically that the founders and the prior court decisions could not have forseen the way things would change, and thus we need to rethink the freedoms of the press and the landmark cases that have decided First Amendment protections and handling libel suits.

Is it just me, or is that really the essence of what they are arguing?

That's how it reads to me.

 

[SystemShock]

"Gorsuch and Thomas went on to say, 'Next is the 2nd amendment' "

 

[Taurus]

I wonder if they're thinking this through. The most consistently over-the-top libelous screeds come from Fox News. Do these Justices want to build a world where Hillary can sue over the Pizzagate nonsense, or Obama can sue over the Birther lies?
I mean, CNN and the New York Times would have no problem comporting to a stricter ruleset, but Fox News? Poor Rupert would be sued into the poorhouse.

 

[Saint by the Bay]

I wonder if they're thinking this through. The most consistently over-the-top libelous screeds come from Fox News. Do these Justices want to build a world where Hillary can sue over the Pizzagate nonsense, or Obama can sue over the Birther lies?
I mean, CNN and the New York Times would have no problem comporting to a stricter ruleset, but Fox News? Poor Rupert would be sued into the poorhouse.

These are ideologues who believe their side is telling the truth. To them there’s nothing wrong with Pizzagate, the Clinton Kill List or Birtherism, because that’s all true. They don’t understand the rock they are turning over.

 

[Optimus Prime]

The two most devout originalists on the court are now saying basically that the founders and the prior court decisions could not have forseen the way things would change,

Interesting that doesn't apply to the second amendment which when it was written "arms" meant a single shot musket that took forever to load and had crappy aim

 

[wardorican]

I wonder if they're thinking this through. The most consistently over-the-top libelous screeds come from Fox News. Do these Justices want to build a world where Hillary can sue over the Pizzagate nonsense, or Obama can sue over the Birther lies?
I mean, CNN and the New York Times would have no problem comporting to a stricter ruleset, but Fox News? Poor Rupert would be sued into the poorhouse.

Yes. That was the exact example used.

https://www.reuters.com/world/us/us...-question-libel-protections-media-2021-07-02/

Thomas and Gorsuch said the court should have taken the appeal. They said that in today's media environment, actual malice can protect lies instead of truth, with real-world consequences. Citing the false "Pizzagate" conspiracy theory that claimed that a Washington pizzeria was a front for a pedophile ring led by former Democratic presidential candidate Hillary Clinton, Thomas said, "Public figure or private, lies impose real harm."

Thomas previously urged the court two years ago to reconsider its libel precedents when it refused to consider reviving a defamation lawsuit against actor Bill Cosby by a woman named Kathrine McKee who said the entertainer falsely called her a liar after she accused him of rape.

Thomas on Friday mentioned McKee again, saying that "surely this court should not remove a woman's right to defend her reputation in court simply because she accuses a powerful man of rape." Cosby was released from prison on Wednesday after Pennsylvania's highest court overturned his sexual assault conviction in a separate case.

For a long time, the idea of misleading or outright lies on the internet was always met with a scoff and "people are smart enough to filter it out". I think they realize that's not true, and it's very dangerous to any political ideology.

Gorsuch said justifications for the actual malice standard may be less in an era when technological changes and social media mean that disinformation can be better amplified and more profitable than traditional news with fact-checkers and editors.

"Not only has the doctrine evolved into a subsidy for published falsehoods on a scale no one could have foreseen, it has come to leave far more people without redress than anyone could have predicted," Gorsuch said.

 

[wardorican]

From Foxnews.

"What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets," he wrote, "has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable."

He also said the line between public and private figures was blurred as private citizens can become public figures on social media "overnight."

"Rules intended to ensure a robust debate over actions taken by high public officials carrying out the public’s business increasingly seem to leave even ordinary Americans without recourse for grievous defamation," Gorsuch concluded. "At least as they are applied today, it’s far from obvious whether Sullivan’s rules do more to encourage people of goodwill to engage in democratic self-governance or discourage them from risking even the slightest step toward public life."

 

[MT15]

I wonder if they're thinking this through. The most consistently over-the-top libelous screeds come from Fox News. Do these Justices want to build a world where Hillary can sue over the Pizzagate nonsense, or Obama can sue over the Birther lies?
I mean, CNN and the New York Times would have no problem comporting to a stricter ruleset, but Fox News? Poor Rupert would be sued into the poorhouse.

I’d be absolutely okay with this result. (Rupert in the poorhouse).

How ironic if two of the most conservative voices on the SC become responsible for reigning in the abomination that is Fox News?

 

[DaveXA]

I’d be absolutely okay with this result. (Rupert in the poorhouse).

How ironic if two of the most conservative voices on the SC become responsible for reigning in the abomination that is Fox News?

I'd laugh if that actually happened. But, as awful as a lot of crap is out there, I'd rather let it play out in the public square than regulate speech. I do think there are some limitations, but the courts can litigate that line rather than altering the first amendment. I worry a bit about the give an inch take a mile phenomena.

 

[MT15]

I don’t think they’re altering the First, are they? They’re just saying that a decision made years ago interpreting it should be revisited. Specifically the part that pertains to making it harder for public figures to prove libel or slander. If I’m interpreting it correctly. Public figures would have the same burden of proof as any other person.

 

[DaveXA]

I don’t think they’re altering the First, are they? They’re just saying that a decision made years ago interpreting it should be revisited. Specifically the part that pertains to making it harder for public figures to prove libel or slander. If I’m interpreting it correctly. Public figures would have the same burden of proof as any other person.

I don't know that it should be the same standard because people in the public eye have different burdens and responsibilities than someone not. But tbh, I don't know what the standard should be. I'm not really an expert though, so I'm curious to see if that changes.

 

[V Chip]

I don’t think they’re altering the First, are they? They’re just saying that a decision made years ago interpreting it should be revisited. Specifically the part that pertains to making it harder for public figures to prove libel or slander. If I’m interpreting it correctly. Public figures would have the same burden of proof as any other person.

If they abridge the freedom of speech or the press in any way, they certainly would be.

But to me the more interesting thing was they were going completely against their "deeply held" constitutional belief of originalism -- that the Constitution should be ONLY interpreted as it was written and in the context of the time it was written. Arguing that the founders or even the prior justices "could not have forseen" is an argument Originalists have fought against over and over again. They're arguing (IMO) that the founders and the Warren court could not have forseen the current media landscape, where the internet can publish ideas and opinions that spread around the world immediately. Originalists should *never* make such an argument (again, IMO). Just shows to me that their "originalism" isn't the driving force behind what they believe and makes them both hypocrites.

 

[wardorican]

If they abridge the freedom of speech or the press in any way, they certainly would be.

But to me the more interesting thing was they were going completely against their "deeply held" constitutional belief of originalism -- that the Constitution should be ONLY interpreted as it was written and in the context of the time it was written. Arguing that the founders or even the prior justices "could not have forseen" is an argument Originalists have fought against over and over again. They're arguing (IMO) that the founders and the Warren court could not have forseen the current media landscape, where the internet can publish ideas and opinions that spread around the world immediately. Originalists should *never* make such an argument (again, IMO). Just shows to me that their "originalism" isn't the driving force behind what they believe and makes them both hypocrites.

But that's not what they're saying. They're just talking about the "malice" standard that was used in the 1960's not being adequate for today. I don't see it as at odds with the constitution.

I haven't read these opinions, but this links to various first amendment topics/decisions he's penned.

Neil Gorsuch

While his record on the Supreme Court has yet to be determined, Justice Neil Gorsuch showed sensitivity toward First Amendment issues while on the court of appeals.

www.mtsu.edu

 

[wardorican]

I don’t think they’re altering the First, are they? They’re just saying that a decision made years ago interpreting it should be revisited. Specifically the part that pertains to making it harder for public figures to prove libel or slander. If I’m interpreting it correctly. Public figures would have the same burden of proof as any other person.

My guess is that they'd separate out political figures from public figures. Just being famous shouldn't eliminate your ability to defend yourself.

 

[Farb]

Interesting that doesn't apply to the second amendment which when it was written "arms" meant a single shot musket that took forever to load and had crappy aim

Does this logic also apply to the 1st also since it applied only to the printing press?