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End the First Amendment Sanctuary for Fake News

Clarence Thomas is right: reporters and publishers should be held to the same libel standards as everyone else.

Justice Clarence Thomas has drawn the sanctimonious ire of the Fourth Estate for his unforgivable suggestion that the media should be held to the same high standard in defamation suits as everyone else. And guess what? He’s right.

The Supreme Court’s landmark decision in New York Times v. Sullivan (1964) obtusely places a First Amendment premium on irresponsible reporting. As a result, it creates a sanctuary for libelous behavior if the targets are public officials or public figures, and raises the bar to “actual malice” on the part of the suspected libeler. This protects journalists even when falsehoods are published first and investigated only later. While the 1964 precedent was created during a time of chronic government lies, the media’s credibility has since been shot to pieces due to leaks, fake news, and a rush to publish.

As such, the precedent should be overruled.

This is what Justice Thomas argued last week in McKee v. Cosby. He said that the states were able to handle libel issues under the First Amendment, and once did so in a balanced and effective way before the Supreme Court ruled in favor of the press in 1964, setting the “public figure” and “actual malice” standards.

“The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” Thomas wrote. Furthermore, “There appears to be little historical evidence suggesting that the New York Times actual-malice rule flows from the original understanding of the First or Fourteenth Amendment.”

Dissenting in Northern Securities Co. v. United States in 1903, Justice Oliver Wendell Holmes declared, “Great cases, like hard cases, make bad law.” That explains the stumble in New York Times v. Sullivan. That case was far more about dismantling Jim Crow and racism in the South than about freedom of speech. The litigation witnessed Alabama brandishing its libel law and racist juries to deter news reporting on pervasive official violence against blacks and civil rights supporters. Black lynchings then flourished in the South. The murderers of Emmett Till, Viola Liuzzo, Medgar Evers, and the three men shot in the Freedom Summer killings—James Chaney, Andrew Goodman, and Mickey Schwerner—among others, were protected by racist law enforcement and community bigotry.

In this crucible of racism, the New York Times was sued for defamation by Montgomery, Alabama’s Public Safety Commissioner, L.B. Sullivan, in the Circuit Court of Montgomery, the city where Rosa Parks was arrested for refusing to yield her seat to a white man. The police commissioner’s complaint was ludicrous.

He alleged that his reputation had been damaged by the publication of an advertisement placed by 64 civil rights leaders sprinkled with trivial factual errors regarding police mistreatment of student demonstrators at the Alabama State College Campus and elsewhere. Commissioner Sullivan was not named in the advertisement. Moreover, his reputation would have been enhanced, not diminished, within the racist Montgomery community by exaggerations of police brutality against civil rights marchers.

The Montgomery County jury nevertheless awarded the police commissioner a stunning $500,000 in compensatory and punitive damages. The verdict threatened to deter media coverage of official brutalities against civil rights demonstrators necessary to defeat the Southern Manifesto and defiance of the desegregation mandate of Brown v. Board of Education. The Supreme Court searched for a way to vindicate The New York Times and to establish prospectively an insurmountable First Amendment threshold in defamation cases against public officials that racist juries could not circumvent.

The result was the so-called “actual malice” rule in a unanimous decision that entered immediate judgment for the New York Times without remand to Alabama’s courts. The rule prohibits defamation suits by public officials and public figures absent proof that a defamatory falsehood was published with actual knowledge of its falsity or reckless disregard for its accuracy.

The latter requires proof that the falsehood was published with a high degree of subjective awareness of its probable falsity. It is not enough that a reasonable journalist would have investigated further. As Justice Byron White acknowledged in the sequel case of St. Amant v. Thompson, the actual malice rule “puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant’s testimony that he published the statement in good faith and unaware of its probable falsity.”

As Justice Thomas elaborated in his opinion last week, there is nothing in the text or history of the First Amendment that justifies such a perverse journalistic incentive for fake news. Indeed, the actual malice rule impairs media credibility by protecting untruths resulting from journalistic negligence. Thomas Jefferson observed more than 150 years before the actual malice rule in a letter to Pennsylvania Governor Thomas McKean:

[The press is] lying to such a degree of prostitution as to deprive it of all credit. And the fact is that…even the least informed of the people have learnt that nothing in a newspaper is to be believed. This is a dangerous state of things, and the press ought to be restored to its credibility if possible…I have therefore long thought that a few prosecutions of the most eminent offenders would have a wholesome effect in restoring the integrity of the presses.

Reporters and publishers should be held to the same negligence standard of liability as are other professionals like doctors and lawyers. Experience hardly suggests that the current actual malice rule is necessary to encourage investigative reporting and scrutiny of government along the lines of Sy Hersh, Bob Woodward, and Carl Bernstein.

Overruling New York Times v. Sullivan would place a premium on careful, meticulous reporting and create a disincentive to hire the indolent, the slothful, and the bigoted.

How can that be antithetical to freedom of expression and an informed public?

Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.