Clarence Thomas Thinks Supreme Court Orders Lists Are His Personal Blog Where He Can Fantasize About Enabling His Rich & Powerful Friends To Sue Their Critics

Way back in 2016, Ken White posted a “lawsplainer” about “opening up our libel laws,’“ as Donald Trump had promised on the campaign trail. In it, he noted that unlike (for example…) Roe v. Wade, there was no decades-long effort by the Federalist Society to undermine 1st Amendment principles, such as those established by the seminal NY Times v. Sullivan case.

Unlike, say, Roe v. Wade, nobody’s been trying to chip away at Sullivan for 52 years. It’s not a matter of controversy or pushback or questioning in judicial decisions. Though it’s been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above. You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find ones who would reliably overturn Sullivan and its progeny. It’s an outlying view — not chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial — at least not from conservatives. There’s been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there’s no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of “hate speech” and other “hurtful” words. It seems unlikely that Trump would appoint any of these.

In short, there’s no big eager group of “overturn Sullivan” judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

Of course, in the seven years since then, “chemtrail-level” thinking has seemingly become mainstream, and so this idea of overturning Sullivan is becoming much more of a mainstream Republican idea.

The reason why is that NY Times v. Sullivan, at its heart, protects people when they criticize rich elites, by setting the bar for defamation (quite reasonably!) high. Specifically, the standard, under NYT v. Sullivan, for defamation of a “public figure” is that the defamatory statements need to be made by someone who knows the statements are not true or, at the very least, had significant doubts about the veracity of the statements. This is the “actual malice” standard which is not, as many people falsely believe, about really disliking the person they’re commenting about and wishing to do them harm.

Without that, we’d have many more SLAPP suits, as the rich and the powerful would file many more vexatious defamation lawsuits against critics, merely because they know that without the actual malice standard, the cases would be that much more onerous, take that much longer to deal with, and be that much more expensive for those they sue.

And, who has stepped up to become the leader of the pack in pushing to dismantle the NYT v. Sullivan actual malice standard? None other than Clarence Thomas. For unclear reasons, he has taken to believing that the Supreme Court’s “orders list” is also his own personal blog, where he is free to weigh in on various legal topics he’s thinking about, even though there is no clear case before him, and he is entirely unbriefed on the details, nuances, or ins-and-outs of the law.

He’s done this on a few issues, but he keeps returning to NYT v. Sullivan and how much he hates it. He first did it in 2019, whining about the actual malice standard. He did it again in the summer of 2022. Also, in 2021, Thomas’ mentor, Laurence Silberman, who was an appeals court judge (who has since past away), picked up Thomas’s line of arguments and ranted against Sullivan, And now Thomas has done it again with last week’s order list.

Given that Thomas’s order list blog posts are basically him screaming into the night “bring me cases that let me overturn Sullivan!” and many Trumpist nutjobs have tried to do just that, none of them have made it that far. And Thomas is sad about that.

Don Blankenship was the CEO of Massey Energy, a large coal mining operation. While he was in charge there was an explosion at one of the mines, and dozens of people died. Blankenship was convicted and sentenced to a year in prison for conspiracy to willfully violate mine health and safety standards. While the conviction was a misdemeanor, he was sentenced to a year in jail.

He later decided to get into politics running for both Senate and President (in 2020) without getting very far. However, he got annoyed that the media pointed to his conviction and sentence by calling him a “felon.” He argued that since it was actually a misdemeanor, calling him a felon was defamatory (I vaguely recall this strategy working in another case, but can’t find it now). Either way, it did not work here. Blankenship sought cert at the Supreme Court, but it was denied.

And that opened up the opportunity for Thomas to once again blog about how very much he hates NYT v. Sullivan, which (hilariously) he starts out by citing his original similar judicial blog post/concurrence from 2019, before moving on to just straight up whining, in which he cites both himself and Silberman so he can pretend there’s a real movement here.

The Court usurped control over libel law and imposed its own elevated standard in New York Times Co. v. Sullivan, 376 U. S. 254 (1964). It decreed that the Constitution required “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the 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.” Id., at 279–280. The Court did not base this “actual malice” rule in the original meaning of the First Amendment. It limited its analysis of the historical record to a loose inference from opposition surrounding the Sedition Act of 1798, see McKee, 586 U. S., at ___–___ (opinion of THOMAS, J.) (slip op., at 12–13), and primarily justified its constitutional rule by noting that 20th century state-court decisions and “the consensus of scholarly opinion apparently favor[ed] the rule,” New York Times, 376 U. S., at 280, and n. 20.

I continue to adhere to my view that we should reconsider the actual-malice standard. See Counterman v. Colorado, 600 U. S. 66, 105 (2023) (dissenting opinion); Coral Ridge Ministries Media, Inc. v. Southern Poverty Law Center, 597 U. S. ___, ___ (2022) (same) (slip op., at 3); Berisha v. Lawson, 594 U. S. ___, ___ (2021) (same) (slip op., at 3); McKee, 586 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 14). “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.” Id., at ___ (same) (slip op., at 2). The decisions have “no relation to the text, history, or structure of the Constitution.” Tah v. Global Witness Publishing, Inc., 991 F. 3d 231, 251 (CADC 2021) (Silberman, J., dissenting in part). And the actual-malice standard comes at a heavy cost, allowing media organizations and interest groups “to cast false aspersions on public figures with near impunity.” Id., at 254. The Court cannot justify continuing to impose a rule of its own creation when it has not “even inquired whether the First or Fourteenth Amendment, as originally understood, encompasses an actual-malice standard.” Coral Ridge Ministries, 597 U. S., at ___ (opinion of THOMAS, J.) (internal quotation marks omitted) (slip op., at 3).

But, of course, all of what he’s saying is basically nonsense. He’s arguing that since actual malice wasn’t a thing at the founding of the country, it can’t be used, but that ignores that we had nearly two centuries of problems in which the courts could not figure out how to make defamation law fit under the 1st Amendment. So unless Thomas is saying all defamation law is unconstitutional (and he’s definitively not!), then his argument makes no sense.

Of course, this whining about actual malice takes on a new light in the past year, when very detailed and careful investigative reporting has revealed Thomas’s affinity for accepting ridiculously expensive gifts of vacation travel from billionaires, and then failing to disclose those gifts. Suddenly, his desire to undermine actual malice, making it easier for the rich (like his friends) and the powerful (like himself) to sue the media for anything they deem inaccurate, looks even more ridiculous in context.

Gee, Justice Thomas, you don’t like ProPublica’s detailed investigative reporting that reveals how you accepted expensive travel holidays from a politically active billionaire which you failed to disclose and you want to make it easier for public figures to sue the media for their reporting? What a surprise!

But, make no mistake about it: there is now very much a movement among a wing of the judiciary to make it much easier for the rich and the powerful to sue critics and reporters for defamation.

And it’s why Congress really ought to codify the actual malice standard into law.