Thomas Says Court Should Reverse Landmark Libel Case

public figures. Joining me is one of the country's leading First Amendment scholars, Jeffrey Stone, Professor at the University of Chicago Law School. His new book is The Free Speech Century, a collection of essays on First Amendment jurisprudence. Jeff Thomas expressed this opinion with a Supreme Court order that refused to revive a defamation lawsuit against Bill Cosby in order he agreed to what was his reasoning well, Thomas's reasoning

was basically a strict originalist approach. Um. He essentially said that it was time, in his view, for the Court to reconsider uh the nineteen sixty four decision in New York Times and Sullivan because as he laid it out, at the time the First Amendment was adopted, UM, individuals could sue for defamation if someone else had made a statement that to fame their reputation, UM, and that they could recover as long as the persons who made the

statement could not prove the statement to be true. That had been the common law in England, it was a common law in the United States, and it was the law in most states until the nineteen sixty four in the Supreme Court decision in Sullivan and So Thomas's argument was that, being a strict originalist, that we should go back to what the framers themselves would have understood the

First Amendment to mean when it was adopted. And his argument is that they would not have understood the First Amendment to have interfered with the traditional common law of libel. The original meaning of the First Amendment the same as it has been in the nearly three decades that Thomas has been on the Court. So what might be his purpose in suggesting this? Now, Well, that's a that's a

great question. I Mean, one possibility that some people have raised is that because President Trump has in a variety of ways condemned the media, and even called about what he said opening up libel laws. Uh that Um Thomas is in some way responding to Trump's suggestion that the

Court should reconsider New York Times insulivan Um. The other possibility is that now that we have a court with five fiercely conservative justices on it, UM Thomas thinks it's possible that they would be willing to go back and and re examine a whole lot of decisions from the past that are inconsistent with what he believes to be

the proper method of constitutional interpretation. Is that likely have any of the new justices or you know, the conservative justices exp rest desire or an inclination to revisit time to be Sullivan, Not to my knowledge, no, I think that UM. In some of the confirmation hearings, for example, I think Gorcitch was asked about that and indicated that he followed precedent, and most of the justices who have taken even a strong originalist view of consitual interpretation, of

view that I take is nonsense. To be clear, UM, have also conceded that precedent is precedent and that although they might be inclined to apply in originalist view to cases that have not previously been issued, that's not previously been resolved, they would still tend to follow the precedence even if they disagreed with them. In your book, there are several articles that explain the First Amendment and how it's sort of different from other amendments, and that its

interpretation began later on. It's really a modern amendment, you might say. Well, Um, the first time that the Supreme Court of the United States directly addressed the meaning of the First Amendment was not until nine UM. And the reason for that was, in part, uh that the First Amendment was generally understood until later to apply only to the federal government and most laws that regulate speech a laws of states and of cities, and therefore most First

Amendment issues did not um. Uh. Most free speech issues did not implicate the First Amendment until that time. So really the Supreme Court first began looking at the meeting of the First Amendment UM a hundred years ago UM. And it was not until nineteen sixty four that the Court looked at the issue of libel and in fairness.

As Thomas says, uh, it is the case that when the First Amendment was adopted UM, that it was understood that defamation was actionable as long as the plaintifficult prove that the defendant had made a statement that defamed the reputation, and the defendant therefore then had the burden approving truthfulness and that they could not prove truthfulness that they were liable.

What New York Times and Sullivan did is as with so many other constitutional provisions UM, the Court realized over time that UM it was necessary to give a more robust interpretation and understanding of constitutional provisions that might have existed a hundred and fifty years before UM and in particular, New York Times and Sullivan came about because UM Southern States Alabama in particular, in this case, we're going after northern newspapers and media who were covering the civil rights

movement UM and UH suing them reliable for statements that were just inadvertently trivially false. And then Alabama juries were giving huge damage ords and the idea was to try to deter any newspapers in the country from reporting what was actually going on in the South. And Thomas seemed to ignore that when he said the states are fully

able to handle these kinds of claim. Explain the importance of the New York Times of your Sullivan decision today, and whether you see any areas where it might be encroached upon, Well, I've been. Sullivan has has come to be regarded by almost everyone who thinks about constitutional law

is one of the great decisions of the Supreme Court. UM. What it did was to eliminate the potential of government, states, cities, whatever, um, to use their libel laws to prevent individuals and newspapers and magazines and individual citizens from criticizing government action and

public officials. So if we had the law of libel as it existed, as Thomas would like to re establish it, for example, then it would be possible just to give an illustration for Donald Trump UH to sue UM the New York Times UH for a statement that was inadvertently inaccurate about what Donald Trump had for lunch, UH, and a sympathetic jury could find out was defamatory and could award him a million dollars in damages. And that's crazy, but that's exactly what was happening when New York Times

and Solovan was decided. UH. So Sullivan is a fundamental decision that has protected freedom of the press, freedom of speech in this country and then has enabled a democracy to flourish. Thank you so much for being on the show. That's Jeffrey Stone, professor at the University of Chicago Law School. His new book is The Free Speech Century. It's a collection of essays. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

and on bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg