Justice Clarence Thomas on Tuesday renewed his yearslong attack on a landmark First Amendment decision, with the conservative jurist again calling for the Supreme Court to revisit the “flawed” ruling in the 1964 case.
The decades-old case, New York Times v. Sullivan, created a higher bar for public figures to claim libel and has been a bedrock of US media law. But some conservatives, including former President Donald Trump, have frequently taken aim at it, arguing it provides too much protection to news outlets.
As part of a separate case decided Tuesday, the majority invoked Sullivan when it wiped away a lower court decision upholding the stalking conviction of a Colorado man who sent hundreds of messages to a woman over Facebook. The 7-2 ruling said it would suffice for prosecutors to show that the speaker was aware that his speech could be viewed as a threat and that the speech was reckless, even if not intentionally threatening.
In a fiery two-page dissent, Thomas criticized his colleague’s use of the Sullivan case, saying they were wrong to apply it to the matter at hand and calling again for the high court to take another look at the landmark ruling.
He said his dissent intended to “address the majority’s surprising and misplaced reliance on New York Times Co. v. Sullivan,” and quoted from previous dissents he’s penned in which he has called into question the 1964 ruling.
“It is thus unfortunate that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this Court’s jurisprudence,” Thomas wrote.
“It’s not surprising that Justice Thomas is once again beating his drum to revisit Sullivan – one of the modern Court’s most important First Amendment precedents with respect to press freedom,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. “But today’s lineup reaffirms that he appears to be in a minority of one on that point.”
Thomas has issued similar public critiques of Sullivan in recent years, including in 2019, when he wrote that the 1964 ruling and “the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”
Since then, he’s been joined in his anti-Sullivan crusade by at least one other member of the current court, something he made note of on Tuesday.
“I am far from alone. Many Members of this Court have questioned the soundness of New York Times and its numerous extensions,” Thomas wrote, before going on to cite dissents from past members of the court, as well as more recent writing from conservative Justice Neil Gorsuch.
In 2021, Gorsuch also questioned Sullivan, writing in a dissent when the court decided not to take up a defamation case that the 1964 ruling should be revisited in part because it “has come to leave far more people without redress than anyone could have predicted.”
But on Tuesday, Thomas again found himself fighting a solo battle, with Justice Amy Coney Barrett penning the only other dissent. Though she, too, was critical of her colleague’s use of Times in the case decided Tuesday, the conservative justice didn’t go as far as Thomas did in calling for the court to revisit the case.
“The Court has … extended Sullivan in a way that makes no sense on Sullivan’s own terms,” Barrett wrote.
CNN’s Ariane de Vogue contributed to this report.
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