Clarence Thomas vs. public’s right to know

Justice Clarence Thomas, long distinguished by his silence on the highest court of the land, spoke loudly last week with a stunningly terrible idea for American democracy. In a bizarre 14-page opinion, Thomas challenged the validity of a halfcentury-old landmark ruling that is essential for journalists to do their job of holding public officials accountable.

That 1964 ruling, Times vs. Sullivan, established that public figures must meet a higher standard than an average citizen in pursuing a libel claim. The justices declared unanimously that a public official must show that the accusation against him or her was made with “actual malice,” meaning “knowledge that it was false or with reckless disregard for the truth.”

“It is taken as not only one of the landmarks of free speech jurisprudence, but one of the bedrocks of free speech jurisprudence,” said Erwin Chemerinsky, dean of UC’s Berkeley Law.

In the 1964 ruling, the justices said the higher standard on public officials was consistent with the First Amendment’s intent to promote “uninhibited, robust and wide open” public debate.

There also are sound practical reasons for the higher threshold. People in power, unlike private citizens, should be subjected to public scrutiny and even criticism for their actions. They also have opportunities to correct or counter negative stories or statements about them.

“The idea is that if something false or misleading is said about them, because they are public people they have the bully pulpit, they have access to a microphone so they can correct the record,” said Jessica Levinson, professor at Loyola Law School in Los Angeles.

Thomas suggested the clock should be rolled back to when the First and 14th amendments were ratified — in 1791 and 1868, respectively — and libel law did not “require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages.” He derided Times vs. Sullivan and subsequent rulings extending libel defenses for journalists as “policydriven decisions masquerading as constitutional law.”

The conservative justice is not alone in objecting to the treatment of public figures under libel law. President Trump had pledged on the campaign trail to “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money ... So when the New York Times writes a hit piece which is a total disgrace or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

Of course, Trump was misstating the law. Under the Times vs. Sullivan standard, a “hit piece” that the writer either knew was false or demonstrated “reckless disregard” for the truth would be fair game for a libel suit — regardless of the target’s prominence.

Chemerinsky and Levinson emphasized that journalists are not the only beneficiaries of Times vs. Sullivan: it also respects Americans’ right to know.

“It’s a speaker’s right and a listener’s right,” Levinson said.

Curiously, coverage of the private and professional backgrounds of Thomas and Trump demonstrate the wisdom of the justices’ differentiation between the libel standard for a public or nonpublic figure.

Allegations that Thomas had sexually harassed a former employee, Anita