By Noah Feldman
Justice Clarence Thomas wants to get medieval with the First Amendment. In a fascinating and bizarre opinion issued Tuesday, Thomas invoked the original meaning of the Constitution and the 18th century common law of libel to assault a landmark freedom-of-the-press decision, New York Times v. Sullivan.
Thomas’s foray won’t become the law in the immediate future. He wrote the solo opinion as the U.S. Supreme Court declined to review the case of one of Bill Cosby’s accusers, who sought to bring a defamation claim against the comedian and convicted sex offender. But it’s important as a sign of the times because it reflects distrust of the news media.
It is also a powerful reminder that the Supreme Court doesn’t and shouldn’t use originalism to address the freedom of speech — a reality that Thomas has reflected in his own non-originalist free-speech opinions.
New York Times v. Sullivan is justifiably famous as a touchstone of modern free-speech law. The 1964 decision involved the question of when a public official can sue for libel.
Before the decision, libel law was purely a state-law issue. In general, there was no difference between a libel suit by a public official or an ordinary civilian. Thomas wants to go back to that world.
The court’s opinion in New York Times v. Sullivan, written by the great liberal Justice William Brennan, changed all that. The court held that a public official could only sue for libel if the defamatory statement about the official was made with actual malice — that is, the person doing the libeling actually knew the statement was false or recklessly disregarded its falsehood.
Although the New York Times v. Sullivan rule was at first restricted to public officials, later Supreme Court cases extended it to cover any public figure.
The point of the rule — and the reason it is so foundational for modern freedom of the press — is that the decision aims to insulate news reporters and media organizations from intimidation by powerful or rich public figures seeking to exploit minor errors in reporting.
The holding doesn’t protect reporters who have acted in bad faith. But as long as the media organization reported a story about a public figure in good faith, it’s protected under New York Times v. Sullivan. The constitutional principle supersedes any state law to the contrary.
An attack on the New York Times v. Sullivan case is therefore an attack on the media.
Nothing in the original meaning of the First Amendment has changed in the 27 years since Thomas joined the court. The timing of his opinion reflects the current anti-journalistic, anti-media mood in conservative circles.
The thinking goes: If, in President Donald Trump’s terms, the media is “the enemy of the people,” why should the media get special constitutional protection when it libels public figures?
It’s also tempting to speculate that Thomas’s experience being accused of sexual harassment by Anita Hill makes him sympathetic to accused public figures. That happened a long time ago, to be sure — but Christine Blasey Ford’s accusations against now-Justice Brett Kavanaugh put Thomas’s experience back in the news.
What’s most weird and worrisome about the jurisprudence in Thomas’s opinion is his insistence that “we should carefully examine the original meaning” of the First Amendment.
As I explain to my First Amendment students every year, the freedom of speech and the press is a rare no-originalism zone in constitutional interpretation. There’s a good reason for that: Many of the framers had a very narrow understanding of constitutional freedom of the press.
In 1798, a Congress full of people who had written or voted to ratify the Constitution and pass the First Amendment enacted the Sedition Act, which made it a crime to “write, print, utter or publish … any false, scandalous and malicious writing or writings against the government of the United States.”
Justice James Iredell, who had earlier played a vocal role at the North Carolina convention to ratify the Constitution, told a jury that this law was perfectly constitutional. Freedom of the press meant only that Congress can’t pass a law imposing prior restraint on publication, meaning advance censorship. Once a story was published, Iredell argued, the government could punish that speech consistent with the First Amendment.
James Madison argued powerfully against this interpretation, and in my view he got the better of the debate. But by then the courts had imprisoned and fined many newspaper editors for violating the Sedition Act, which was never struck down.
When Justice Oliver Wendell Holmes more or less invented the modern First Amendment a century ago, he essentially acknowledged he was rejecting the original meaning of the text. (Holmes used one of his inimitable backward formulations: “It well may be,” he wrote, “that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose.”)
And Thomas himself has taken non-originalist First Amendment positions. The example I used last week to make the point in my class was Thomas’ 2015 radical pro-free speech decision in Reed v. Town of Gilbert. That decision, about sign ordinances, holds that any time a law regulates content, it must be subjected to the highest degree of judicial scrutiny and almost inevitably be struck down.
This speech-protective holding would’ve been incomprehensible to the framers. In fact, it goes way beyond even recent free-speech jurisprudence.
Thomas made no effort to reconcile his opinion Tuesday with the rest of his free-speech positions. But we need to keep in mind that an originalist First Amendment might be pretty similar to no First Amendment at all. Even Thomas has in the past acted as though the First Amendment was part of a living Constitution. The other justices shouldn’t let him kill it.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”