Justice Thomas Sounds the Alarm on the ‘Actual Malice’ Rule in Defamation Cases

 

In the exuberant happiness, relief, and pure joy of what one observer has called “one of the greatest weeks in the history of the U.S. Supreme Court”, one very short dissent by the Justice who is now recognized as “the undisputed intellectual leader of the Court” has been largely overlooked. However, its importance cannot be overemphasized as a potential “harbinger of something important still to come.”

That lone dissent, as so many of his dissents have been over the years, was written by Justice Clarence Thomas who, if my admittedly somewhat blinded judgment in view of our admiration for the man may be pardoned, should clearly be Chief Justice Thomas. In his dissent on Coral Ridge Ministries v. Southern Poverty Law Center, Justice Thomas — once again — expressed his frustration over the reluctance of the Court to take up the extremely unjust rule of New York Times v. Sullivan which requires a showing of “actual malice” before a defamation suit can proceed. The result of this rule is that interest groups and media organizations have been allowed “to cast false aspersions on public figures with near impunity.”

What caught my attention about this case was — aside from the fact that I try to follow Justice Thomas’ writings as closely as possible — that the defendant in this case, the despicable, disgusting, odious, execrable Southern Poverty Law Center, is, as it is described in yesterday’s Powerline piece on this case, “one of the great grifter organizations of our time” and one which specializes in smearing conservative organizations only, often inflicting great damage on them. Some time ago, I decided to do some fairly deep research on this grotesque façade of a “public interest group” and my findings (published under the title “The Poverty Palace That Hate Built” can be found here) were sickening, to put it mildly.

Here are a few portions of the dissent but I wholeheartedly recommend reading it in its entirety to more fully appreciate the deep and searching intelligence of this horribly unjustly maligned man who we are certain will be remembered in future histories of the Court as one of the greatest Justices to ever serve on the Court:

Coral Ridge Ministries Media, Inc., is a Christian non-profit dedicated to spreading the “Gospel of Jesus Christ” and “a biblically informed view of the world, using all available media.” 406 F. Supp. 3d 1258, 1268 (MD Ala. 2019) (internal quotation marks omitted). In 2017, Coral Ridge applied to receive donations through AmazonSmile, a program that allows Amazon customers to contribute to approved nonprofits. To its dismay, Coral Ridge learned it was ineligible for the program. The Southern Poverty Law Center (SPLC) had designated Coral Ridge an “Anti-LGBT hate group” because of its biblical views concerning human sexuality and marriage. Id., at 1270 (internal quotation marks omitted). AmazonSmile excluded Coral Ridge based on SPLC’s “hate group” designation.

***

I would grant certiorari in this case to revisit the “actual malice” standard. This case is one of many showing how New York Times and its progeny have allowed media organizations and interest groups “to cast false aspersions on public figures with near impunity.” Tah, 991 F. 3d, at 254 (opinion of Silberman, J.). SPLC’s “hate group” designation lumped Coral Ridge’s Christian ministry with groups like the Ku Klux Klan and Neo-Nazis. It placed Coral Ridge on an interactive, online “Hate Map” and caused Coral Ridge concrete financial injury by excluding it from the AmazonSmile donation program. Nonetheless, unable to satisfy the “almost impossible” actual-malice standard this Court has imposed, Coral Ridge could not hold SPLC to account for what it maintains is a blatant falsehood. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 771 (1985) (White, J., concurring in judgment).

An excellent brief analysis of this dissent can be found at Powerlineblog.com and it contains the following observations:

The culprit here is twofold: 1) the requirement that to be actionable, a statement must be one of fact, not opinion; and 2) the “actual malice” standard–the standard that a public figure plaintiff must prove not only that the defendant (here, SPLC) was careless in libeling him or her, but rather that the defendant knew that what it said was false, or knew that it was likely false, and said it anyway. For obvious reasons, this subjective standard has proved impossible to meet in nearly all cases involving public figures.

Justice Thomas concluded his dissent with these most appropriate words:

Because the Court should not “insulate those who perpetrate lies from traditional remedies like libel suits” unless “the First Amendment requires” us to do so, Berisha, 594 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 3), I respectfully dissent from the denial of certiorari.

Deep wisdom from the mind of a great man.

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  1. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Cassandro (View Comment):

    Justin Other Lawyer (View Comment):

    Bryan G. Stephens (View Comment):

    Cassandro (View Comment):

    Bryan G. Stephens (View Comment):

    That was up to me if you printed something untrue and it caused damage to somebody then somebody then you have to pay.

    If there is malice, you should get prison.

    But the point of free speech includes saying something that is not true but provocative in order to make people think. We have here people who very frequently knowingly say things that are untrue as if they are true in order to be the Devil’s Advocate or to confuse the debate or are dismissed as metaphorical. And it is awfully hard to tell what they actually believe from their words. This is considered acceptable confrontational speech.

    Telling obvious lies to damage someone’s reputation is doing them damage. That should be illegal.

    That is not the same thing as devil’s advocate in a debate. It is not even close. Stuff here is meaningless. Publishing an attack as the New York Times is not. The bigger the player who is the attacker, the more heavy the burden should be placed upon them and the greater the wrath.

    There is not enough punishment for the evil in this land, and that should darn well change.

    I’ll play the devil’s advocate here—where does Donald Trump’s comment about Ted Cruz’s father/JFK’s assassination fit into your analysis?

    Good point. Glad you brought it up. You must have a legal view on it. Of course Trump didn’t state it as fact. But it was a bad insinuation bordering on slander that referred to something that occurred over half a century before. Where does this exactly fall, in your view, within the argument that lying is actionable.

    See above

    • #31
  2. Stad Coolidge
    Stad
    @Stad

    Bryan G. Stephens (View Comment):

    That was up to me if you printed something untrue and it caused damage to somebody then somebody then you have to pay.

    If there is malice, you should get prison.

    I like it.

    • #32
  3. Cassandro Coolidge
    Cassandro
    @Flicker

    Stina (View Comment):

    Cassandro (View Comment):

    Justin Other Lawyer (View Comment):

    Bryan G. Stephens (View Comment):

    Cassandro (View Comment):

    Bryan G. Stephens (View Comment):

    That was up to me if you printed something untrue and it caused damage to somebody then somebody then you have to pay.

    If there is malice, you should get prison.

    But the point of free speech includes saying something that is not true but provocative in order to make people think. We have here people who very frequently knowingly say things that are untrue as if they are true in order to be the Devil’s Advocate or to confuse the debate or are dismissed as metaphorical. And it is awfully hard to tell what they actually believe from their words. This is considered acceptable confrontational speech.

    Telling obvious lies to damage someone’s reputation is doing them damage. That should be illegal.

    That is not the same thing as devil’s advocate in a debate. It is not even close. Stuff here is meaningless. Publishing an attack as the New York Times is not. The bigger the player who is the attacker, the more heavy the burden should be placed upon them and the greater the wrath.

    There is not enough punishment for the evil in this land, and that should darn well change.

    I’ll play the devil’s advocate here—where does Donald Trump’s comment about Ted Cruz’s father/JFK’s assassination fit into your analysis?

    Good point. Glad you brought it up. You must have a legal view on it. Of course Trump didn’t state it as fact. But it was a bad insinuation bordering on slander that referred to something that occurred over half a century before. Where does this exactly fall, in your view, within the argument that lying is actionable.

    I didn’t think it originated with trump. I thought I saw it in the National Enquirer before Trump said anything and originated the story. I saw it and rolled my eyes. On this one, Trump may be just as guilty of gullibility as Gary is. At least occasionally, NE lands on something true.

    While it was tawdry and low, I didn’t think it amounted to as big a deal as was made since he was just repeating a tabloid anyone shopping for groceries saw.

    Yes, Trump said things to the effect of, It’s been reported, and, I don’t know but … these things if true are a serious accusation.  He never made a direct accusation, but the innuendo was there, and it was weak and laughable.

    • #33
  4. Cassandro Coolidge
    Cassandro
    @Flicker

    Here’s a poll question for the Never Trumpers, the Trump Averse, and those who give a moment’s credence to the J6 Show Trial: How many of you believe that Trump said to drink bleach?

    How many of you believe — or give any credence to the reporting — that Trump in any way instructed people or said that people should or could drink bleach to treat or prevent covid?

    This SHOW trial is the same as the media saying Trump said to drink bleach.  How many of you actually think that Trump said to drink bleach?

    • #34
  5. Hoyacon Member
    Hoyacon
    @Hoyacon

    Cassandro (View Comment):

    Here’s a poll question for the Never Trumpers, the Trump Averse, and those who give a moment’s credence to the J6 Show Trial: How many of you believe that Trump said to drink bleach?

    How many of you believe — or give any credence to the reporting — that Trump in any way instructed people or said that people should or could drink bleach to treat or prevent covid?

    This SHOW trial is the same as the media saying Trump said to drink bleach. How many of you actually think that Trump said to drink bleach?

    Or called white supremacists fine people.

    • #35
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