The United States Supreme Court’s term has recently wrapped up, and as usual, there were some bombshell rulings.  But the sheer volume of activity could make us lose sight of an issue potentially lurking – the continued health of New York Times v. Sullivan.

Justice Clarence Thomas wrote a dissenting opinion in 2019 that urged the Supreme Court to revisit the 1964 holding.  Given that the ruling – which essentially makes it harder for public officials and public figures to prevail in libel suits – has been the foundation for defamation law in our country for nearly 60 years, it would be disruptive at a minimum, to overrule it.

Justice Thomas bases his dissent, as always, on his “originalist” theory.  In his view, we must interpret the Constitution consistently with the state of the law and history as it existed in 1789.  He never really says why we need to do that, and the theory doesn’t lend itself well to cases involving things like video games.  His dissent in Brown v. Entertainment Merchants Association is mystifying.   But in Justice Thomas’s view, if the term “actual malice” wasn’t on people’s lips in 1789, it can’t be part of the law in 2020.

Reversing New York Times v. Sullivan would also open the floodgates to libel litigation whose outcomes would be completely up to the states.  The impact on free speech from such a chaotic system would be devastating.

I found this piece by Matthew Schafer just fascinating.  He does two things.   First, he points out that the law at the time of the revolution wasn’t as clear as Justice Thomas would view it.  Indeed, the law as it existed as of the revolution was based on libel law in a monarchy. And we rejected that system of governance.

Schafer also makes a compelling case for rejecting the originalism approach.  Whatever its merits in theory, in practice Justice Thomas seems to be a little uneven in how he applies it.

Read the piece and decide for yourself.  I think you’ll agree Schafer offers some “original” thinking on the subject.