Clarence Thomas wants to eviscerate the First Amendment

The ad that led to a landmark libel ruling.

If U.S. Supreme Court Justice Clarence Thomas had his way, First Amendment protections for freedom of the press could be turned back not just to the pre-civil rights era but to the pre-Civil War era as well.

Let me explain. On Tuesday, Thomas wrote that the court ought to overturn its landmark 1964 New York Times v. Sullivan decision and allow the states free rein in deciding what standards should prevail in libel suits. In Sullivan, the court ruled that to prove libel public officials would have to show defamatory material about them was published with the knowledge that it was false or with reckless disregard as to whether it was true or false. That standard, known as “actual malice,” was later extended to public figures as well.

Now Thomas would reverse that. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” Thomas said. “We should reconsider our jurisprudence in this area.”

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Trump keeps threatening to weaken libel protections. It’s time to take him seriously.

The ad that sparked a libel revolution. See the original at the National Archives.

Among President Trump’s few animating principles is his deep and abiding belief that the libel laws were created for his personal enrichment. Thus it should have surprised no one when White House chief of staff Reince Priebus said over the weekend that Trump may seek to dismantle a vital protection against libel suits for journalists who report on matters of public interest.

“I think it’s something that we’ve looked at,” Priebus said on ABC News’ “This Week” in response to a question by Jonathan Karl. “How that gets executed or whether that goes anywhere is a different story.” Priebus added that news organizations must “be more responsible with how they report the news.”

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