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Justice Thomas Wants to End 'Actual Malice' Standard

By George Khoury, Esq. on February 19, 2019 | Last updated on March 21, 2019

Justice Clarence Thomas has chosen an interesting time to speak up and out against the actual malice standard established by New York Times v. Sullivan.

In a concurrence, authored by Justice Thomas and joined by no other Justices, of the denial of Katherine McKee's petition for cert in her case against Bill Cosby for defamation, Justice Thomas basically explains how he believes the Court and lower courts got standard for libel against a public figure all wrong and that, in his words: "We should reconsider our jurisprudence in this area."

What's Wrong With NYT v. Sullivan?

According to Justice Thomas, the actual malice standard for public officials and figures is judicially constructed and not in keeping with the Constitution, nor the First and Fourteenth Amendments. He explains that New York Times and its progeny "were policy-driven decisions masquerading as constitutional law."

Justice Thomas seems to rely heavily on the fact that the Court did not intervene until 1964, as libel laws are state matters and that the First Amendment does not protect libelous statements. And that when the Court did intervene in NYT v. Sullivan, it basically declared a major part of nearly every state's libel laws unconstitutional.

Notably, he seems to ignore the realities of the times and the explosion of major media broadcasters and publishers during that time, and what not having the "actual malice" standard would mean. The Justice seems to blast the Court for fashioning a judicial remedy that forces state laws to comport with Constitutional requirements. Surprisingly, Justice Thomas made the effort to further explain that under common law a libel against a public figure, particularly an official, is seen as more egregious and serious than if it occurred against a regular individual.

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