When President Trump made his rambling and incoherent speech in the Rose Garden announcing the Emergency Declaration he “didn't have to do,” about the only thing that was clear, other than the fact of Declaration itself, was that he’s convinced he OWNS the Supreme Court. He outlined the probable course of legal challenges to the Declaration with his usual sparkling eloquence: (Cue sing-song third-grade reading voice)
“And we will have a national emergency, and we will then be sued, and they will sue us in the 9th Circuit, even though it shouldn't be there, and we will possibly get a bad ruling, and then we'll get another bad ruling, and then we'll end up in the Supreme Court, and hopefully we'll get a fair shake and we'll win in the Supreme Court.
“Just like the ban, they sued us in the 9th Circuit and we lost, and then we lost in the appellate division, and then we went to the Supreme Court and we won.”1
To be fair, he has reason to think he owns the Court. After all, he’s appointed two ultra-right soulmates to the Court, including (ta-da!) the elusive tie-breaking vote. And he did win the Muslim ban case, despite his blatantly discriminatory statements!
It may not be true that Trump owns all the conservatives on the Court--there have been some intriguing glimmers of independence lately--most notably from Chief Justice Roberts and Justice Gorsuch. But there is one member of the Court who, when Trump says “Jump!” can always be counted on to say, “How high??”
So it was no surprise to anyone that shortly after Trump started bitterly bemoaning the fact that there is a free and independent press, which he can't control, able to criticize and satirize him--at a time when he's attempting to ban troublesome reporters from the White House and desperately searching for legal grounds to sue that reputable news organization known as SNL--Justice Thomas quickly rides to the rescue with a convenient legal doctrine.
In McKee v. Cosby,2 Thomas, ever predictable, challenges yet another long-established precedent on the grounds that it’s not properly grounded in the First and Fourteenth Amendments. He is responding to the landmark case New York Times Co. v. Sullivan3, which established that when a public figure sues for libel, the standard for liability is that the libelous statement was made with “‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 4
Naturally, Thomas’ argument is founded on an originalist analysis. He claims that the Framers of the First and the Fourteenth Amendments never intended to create the “actual malice” standard, and goes through an extensive review of libel law at the time of the Founding and at the passage of the Fourteenth Amendment.
Whatever the merits of Thomas’ historical analysis, his conclusion is very strange, even incomprehensible, in light of the backstory of the Sullivan case. He says, “We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.”5
The Sullivan case is grounded in the Civil Rights movement, and Thomas’ opinion makes it clear he's well aware of that. He should be. The Civil Rights movement is the reason he’s sitting in that chair to write this opinion!
As the Philadelphia Inquirer explains, “In 1960, as King — the well-known leader of the Rosa Parks-sparked Montgomery bus boycott — was looking to expand his movement against Southern segregation, officials in Alabama charged the young minister with perjury. A group calling itself the Committee to Defend Martin Luther King and the Struggle for Freedom in the South placed a full-page ad in the New York Times calling attention to the case and seeking to raise money for King’s defense. It was headlined ‘Heed Their Rising Voices.’
“Alabama’s white, pro-segregation leaders had other ideas. Having vowed 'massive resistance' to racial integration, top officials — beginning with Montgomery’s public safety commissioner L.B. Sullivan, later joined by Alabama’s governor — sued the New York Times as well as prominent black ministers for libel over the allegations in the ad. Bringing their cases in state court before all-white juries who’d been whipped into a frenzy against 'outside agitators' by their political leaders, Sullivan eventually won a $500,000 judgment — a sum that would have been highly damaging to the Times in those days.”6
This massive judgment had a complete chilling effect on reporting about the Civil Rights movement in Alabama. Until 1964. When the Court “meddled” to protect freedom of the press (and the Civil Rights movement) from the depredations of virulent racists. And the press was free to resume coverage of the dreadful abuses of civil rights in Alabama. Without this coverage the objectives of the Civil Rights movement may well have failed, or at least been significantly delayed.
So, Herr Justice Thomas, “The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm”? Really?? Like Alabama was in Sullivan?
Once again, Thomas appears incapable of comprehending that his “academic” opinions would have devastating real-world consequences, even when he outlines the historical evidence for those consequences in his own opinion. And the fact that Thomas, the only African-American Justice, is trying to undo a free press victory born out of the desperate struggle for Civil Rights--of which he himself is one of the greatest beneficiaries--is just another measure of his terminal, toxic cluelessness. (If it is indeed cluelessness, and not malevolent intent.)
Even in ordinary circumstances, abandoning the free press protection of the “actual malice” standard would be a dangerous proposition. But in an era when the President is calling the press, “the enemy of the people”; when he's shouting down questions he doesn't like or ordering journalists to sit down; when he's attempting to ban reporters from the White House for asking probing questions; and trying to find a way to sue SNL, this theory has much more ominous implications.
Just imagine a would-be dictator like Trump with the legal power to slap any member of the press who crosses him with a massive libel suit. How long would the press remain free and independent? How long would we be able to fend off attempts to make the press a mere puppet of the government like those in Communist countries?
Fortunately, no one else joined in this opinion. It appears, for now at least, Thomas remains on the lunatic fringe even of this uber-conservative majority. And of course, as a concurrence in a denial of certiorari, this opinion has no precedential value. But Thomas has once again shown himself to be a dangerously irresponsible jurist, and demonstrated that his legal doctrines, if implemented, would be fatal to a free and democratic society.
2 586 U.S. ______(2019)(Thomas, J., concurring)
3 376 U. S. 254 (1964)
4 Id., at 279–280.
5 McKee, supra at _____.