Here is an excerpt:
Justice Clarence Thomas renewed his call on Tuesday for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment to make it more difficult for public officials to prevail in libel suits.
Justice Thomas wrote that the decision had no basis in the Constitution as it was understood by the people who drafted and ratified it. He added, quoting an earlier opinion, that it “comes at a heavy cost, allowing media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’”
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Justice Thomas has been a longtime critic of the actual malice standard, and Tuesday’s opinion returned to earlier themes, quoting earlier opinions. The Sullivan ruling and ones elaborating on it, he wrote, “were policy-driven decisions masquerading as constitutional law” with “no relation to the text, history or structure of the Constitution.”
In 2021, Justice Neil M. Gorsuch added his voice to the criticism of the decision. He wrote that much had changed since 1964, suggesting that the actual malice doctrine might have made more sense when there were fewer and more reliable sources of news, dominated by outlets “employing legions of investigative reporters, editors and fact-checkers.”
I hate to disagree with two of my favorite brothers, but I believe criticism of public officials lies at the core of the freedom of speech and of the press that is protected against any law abridging these freedoms. History is a means of finding the original meaning of text, but when the text is clear (no law means no law) it trumps history. Sometimes history only proves that public officials do not like to be governed by constitutional limits on their powers.
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