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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcast. Supreme Court Justice

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Speaker 1: Clarence Thomas is calling for the Court to overturn the

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Speaker 1: landmark four New York Times v. Sullivan ruling, which protects

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Speaker 1: news organizations from most libel suits when they write about

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Speaker 1: public figures. Joining me is one of the country's leading

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Speaker 1: First Amendment scholars, Jeffrey Stone, Professor at the University of

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Speaker 1: Chicago Law School. His new book is The Free Speech Century,

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Speaker 1: a collection of essays on First Amendment jurisprudence. Jeff Thomas

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Speaker 1: expressed this opinion with a Supreme Court order that refused

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Speaker 1: to revive a defamation lawsuit against Bill Cosby in order

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Speaker 1: he agreed to what was his reasoning well, Thomas's reasoning

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Speaker 1: was basically a strict originalist approach. Um. He essentially said

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Speaker 1: that it was time, in his view, for the Court

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Speaker 1: to reconsider uh the nineteen sixty four decision in New

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Speaker 1: York Times and Sullivan because as he laid it out,

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Speaker 1: at the time the First Amendment was adopted, UM, individuals

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Speaker 1: could sue for defamation if someone else had made a

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Speaker 1: statement that to fame their reputation, UM, and that they

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Speaker 1: could recover as long as the persons who made the

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Speaker 1: statement could not prove the statement to be true. That

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Speaker 1: had been the common law in England, it was a

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Speaker 1: common law in the United States, and it was the

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Speaker 1: law in most states until the nineteen sixty four in

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Speaker 1: the Supreme Court decision in Sullivan and So Thomas's argument

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Speaker 1: was that, being a strict originalist, that we should go

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Speaker 1: back to what the framers themselves would have understood the

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Speaker 1: First Amendment to mean when it was adopted. And his

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Speaker 1: argument is that they would not have understood the First

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Speaker 1: Amendment to have interfered with the traditional common law of libel.

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Speaker 1: The original meaning of the First Amendment the same as

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Speaker 1: it has been in the nearly three decades that Thomas

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Speaker 1: has been on the Court. So what might be his

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Speaker 1: purpose in suggesting this? Now, Well, that's a that's a

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Speaker 1: great question. I Mean, one possibility that some people have

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Speaker 1: raised is that because President Trump has in a variety

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Speaker 1: of ways condemned the media, and even called about what

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Speaker 1: he said opening up libel laws. Uh that Um Thomas

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Speaker 1: is in some way responding to Trump's suggestion that the

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Speaker 1: Court should reconsider New York Times insulivan Um. The other

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Speaker 1: possibility is that now that we have a court with

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Speaker 1: five fiercely conservative justices on it, UM Thomas thinks it's

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Speaker 1: possible that they would be willing to go back and

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Speaker 1: and re examine a whole lot of decisions from the

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Speaker 1: past that are inconsistent with what he believes to be

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Speaker 1: the proper method of constitutional interpretation. Is that likely have

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Speaker 1: any of the new justices or you know, the conservative

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Speaker 1: justices exp rest desire or an inclination to revisit time

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Speaker 1: to be Sullivan, Not to my knowledge, no, I think

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Speaker 1: that UM. In some of the confirmation hearings, for example,

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Speaker 1: I think Gorcitch was asked about that and indicated that

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Speaker 1: he followed precedent, and most of the justices who have

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Speaker 1: taken even a strong originalist view of consitual interpretation, of

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Speaker 1: view that I take is nonsense. To be clear, UM,

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Speaker 1: have also conceded that precedent is precedent and that although

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Speaker 1: they might be inclined to apply in originalist view to

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Speaker 1: cases that have not previously been issued, that's not previously

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Speaker 1: been resolved, they would still tend to follow the precedence

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Speaker 1: even if they disagreed with them. In your book, there

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Speaker 1: are several articles that explain the First Amendment and how

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Speaker 1: it's sort of different from other amendments, and that its

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Speaker 1: interpretation began later on. It's really a modern amendment, you

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Speaker 1: might say. Well, Um, the first time that the Supreme

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Speaker 1: Court of the United States directly addressed the meaning of

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Speaker 1: the First Amendment was not until nine UM. And the

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Speaker 1: reason for that was, in part, uh that the First

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Speaker 1: Amendment was generally understood until later to apply only to

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Speaker 1: the federal government and most laws that regulate speech a

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Speaker 1: laws of states and of cities, and therefore most First

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Speaker 1: Amendment issues did not um. Uh. Most free speech issues

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Speaker 1: did not implicate the First Amendment until that time. So

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Speaker 1: really the Supreme Court first began looking at the meeting

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Speaker 1: of the First Amendment UM a hundred years ago UM.

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Speaker 1: And it was not until nineteen sixty four that the

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Speaker 1: Court looked at the issue of libel and in fairness.

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Speaker 1: As Thomas says, uh, it is the case that when

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Speaker 1: the First Amendment was adopted UM, that it was understood

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Speaker 1: that defamation was actionable as long as the plaintifficult prove

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Speaker 1: that the defendant had made a statement that defamed the reputation,

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Speaker 1: and the defendant therefore then had the burden approving truthfulness

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Speaker 1: and that they could not prove truthfulness that they were liable.

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Speaker 1: What New York Times and Sullivan did is as with

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Speaker 1: so many other constitutional provisions UM, the Court realized over

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Speaker 1: time that UM it was necessary to give a more

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Speaker 1: robust interpretation and understanding of constitutional provisions that might have

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Speaker 1: existed a hundred and fifty years before UM and in particular,

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Speaker 1: New York Times and Sullivan came about because UM Southern

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Speaker 1: States Alabama in particular, in this case, we're going after

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Speaker 1: northern newspapers and media who were covering the civil rights

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Speaker 1: movement UM and UH suing them reliable for statements that

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Speaker 1: were just inadvertently trivially false. And then Alabama juries were

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Speaker 1: giving huge damage ords and the idea was to try

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Speaker 1: to deter any newspapers in the country from reporting what

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Speaker 1: was actually going on in the South. And Thomas seemed

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Speaker 1: to ignore that when he said the states are fully

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Speaker 1: able to handle these kinds of claim. Explain the importance

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Speaker 1: of the New York Times of your Sullivan decision today,

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Speaker 1: and whether you see any areas where it might be

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Speaker 1: encroached upon, Well, I've been. Sullivan has has come to

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Speaker 1: be regarded by almost everyone who thinks about constitutional law

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Speaker 1: is one of the great decisions of the Supreme Court. UM.

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Speaker 1: What it did was to eliminate the potential of government, states, cities, whatever, um,

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Speaker 1: to use their libel laws to prevent individuals and newspapers

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Speaker 1: and magazines and individual citizens from criticizing government action and

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Speaker 1: public officials. So if we had the law of libel

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Speaker 1: as it existed, as Thomas would like to re establish it,

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Speaker 1: for example, then it would be possible just to give

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Speaker 1: an illustration for Donald Trump UH to sue UM the

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Speaker 1: New York Times UH for a statement that was inadvertently

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Speaker 1: inaccurate about what Donald Trump had for lunch, UH, and

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Speaker 1: a sympathetic jury could find out was defamatory and could

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Speaker 1: award him a million dollars in damages. And that's crazy,

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Speaker 1: but that's exactly what was happening when New York Times

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Speaker 1: and Solovan was decided. UH. So Sullivan is a fundamental

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Speaker 1: decision that has protected freedom of the press, freedom of

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Speaker 1: speech in this country and then has enabled a democracy

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Speaker 1: to flourish. Thank you so much for being on the show.

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Speaker 1: That's Jeffrey Stone, professor at the University of Chicago Law School.

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Speaker 1: His new book is The Free Speech Century. It's a

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Speaker 1: collection of essays. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg