WEBVTT - Thomas Says Court Should Reverse Landmark Libel Case

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcast. Supreme Court Justice

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<v Speaker 1>Clarence Thomas is calling for the Court to overturn the

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

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<v Speaker 1>news organizations from most libel suits when they write about

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<v Speaker 1>public figures. Joining me is one of the country's leading

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<v Speaker 1>First Amendment scholars, Jeffrey Stone, Professor at the University of

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<v Speaker 1>Chicago Law School. His new book is The Free Speech Century,

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<v Speaker 1>a collection of essays on First Amendment jurisprudence. Jeff Thomas

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<v Speaker 1>expressed this opinion with a Supreme Court order that refused

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<v Speaker 1>to revive a defamation lawsuit against Bill Cosby in order

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<v Speaker 1>he agreed to what was his reasoning well, Thomas's reasoning

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<v Speaker 1>was basically a strict originalist approach. Um. He essentially said

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<v Speaker 1>that it was time, in his view, for the Court

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<v Speaker 1>to reconsider uh the nineteen sixty four decision in New

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<v Speaker 1>York Times and Sullivan because as he laid it out,

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<v Speaker 1>at the time the First Amendment was adopted, UM, individuals

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<v Speaker 1>could sue for defamation if someone else had made a

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<v Speaker 1>statement that to fame their reputation, UM, and that they

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<v Speaker 1>could recover as long as the persons who made the

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<v Speaker 1>statement could not prove the statement to be true. That

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<v Speaker 1>had been the common law in England, it was a

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<v Speaker 1>common law in the United States, and it was the

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<v Speaker 1>law in most states until the nineteen sixty four in

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<v Speaker 1>the Supreme Court decision in Sullivan and So Thomas's argument

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<v Speaker 1>was that, being a strict originalist, that we should go

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<v Speaker 1>back to what the framers themselves would have understood the

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<v Speaker 1>First Amendment to mean when it was adopted. And his

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<v Speaker 1>argument is that they would not have understood the First

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<v Speaker 1>Amendment to have interfered with the traditional common law of libel.

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<v Speaker 1>The original meaning of the First Amendment the same as

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<v Speaker 1>it has been in the nearly three decades that Thomas

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<v Speaker 1>has been on the Court. So what might be his

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<v Speaker 1>purpose in suggesting this? Now, Well, that's a that's a

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<v Speaker 1>great question. I Mean, one possibility that some people have

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<v Speaker 1>raised is that because President Trump has in a variety

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<v Speaker 1>of ways condemned the media, and even called about what

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<v Speaker 1>he said opening up libel laws. Uh that Um Thomas

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<v Speaker 1>is in some way responding to Trump's suggestion that the

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<v Speaker 1>Court should reconsider New York Times insulivan Um. The other

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<v Speaker 1>possibility is that now that we have a court with

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<v Speaker 1>five fiercely conservative justices on it, UM Thomas thinks it's

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<v Speaker 1>possible that they would be willing to go back and

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<v Speaker 1>and re examine a whole lot of decisions from the

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<v Speaker 1>past that are inconsistent with what he believes to be

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<v Speaker 1>the proper method of constitutional interpretation. Is that likely have

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<v Speaker 1>any of the new justices or you know, the conservative

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<v Speaker 1>justices exp rest desire or an inclination to revisit time

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<v Speaker 1>to be Sullivan, Not to my knowledge, no, I think

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<v Speaker 1>that UM. In some of the confirmation hearings, for example,

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<v Speaker 1>I think Gorcitch was asked about that and indicated that

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<v Speaker 1>he followed precedent, and most of the justices who have

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<v Speaker 1>taken even a strong originalist view of consitual interpretation, of

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<v Speaker 1>view that I take is nonsense. To be clear, UM,

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<v Speaker 1>have also conceded that precedent is precedent and that although

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<v Speaker 1>they might be inclined to apply in originalist view to

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<v Speaker 1>cases that have not previously been issued, that's not previously

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<v Speaker 1>been resolved, they would still tend to follow the precedence

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<v Speaker 1>even if they disagreed with them. In your book, there

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<v Speaker 1>are several articles that explain the First Amendment and how

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<v Speaker 1>it's sort of different from other amendments, and that its

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

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<v Speaker 1>might say. Well, Um, the first time that the Supreme

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<v Speaker 1>Court of the United States directly addressed the meaning of

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<v Speaker 1>the First Amendment was not until nine UM. And the

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<v Speaker 1>reason for that was, in part, uh that the First

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<v Speaker 1>Amendment was generally understood until later to apply only to

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<v Speaker 1>the federal government and most laws that regulate speech a

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<v Speaker 1>laws of states and of cities, and therefore most First

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<v Speaker 1>Amendment issues did not um. Uh. Most free speech issues

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<v Speaker 1>did not implicate the First Amendment until that time. So

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<v Speaker 1>really the Supreme Court first began looking at the meeting

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<v Speaker 1>of the First Amendment UM a hundred years ago UM.

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<v Speaker 1>And it was not until nineteen sixty four that the

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<v Speaker 1>Court looked at the issue of libel and in fairness.

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<v Speaker 1>As Thomas says, uh, it is the case that when

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<v Speaker 1>the First Amendment was adopted UM, that it was understood

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<v Speaker 1>that defamation was actionable as long as the plaintifficult prove

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<v Speaker 1>that the defendant had made a statement that defamed the reputation,

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<v Speaker 1>and the defendant therefore then had the burden approving truthfulness

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<v Speaker 1>and that they could not prove truthfulness that they were liable.

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<v Speaker 1>What New York Times and Sullivan did is as with

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<v Speaker 1>so many other constitutional provisions UM, the Court realized over

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<v Speaker 1>time that UM it was necessary to give a more

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<v Speaker 1>robust interpretation and understanding of constitutional provisions that might have

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<v Speaker 1>existed a hundred and fifty years before UM and in particular,

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<v Speaker 1>New York Times and Sullivan came about because UM Southern

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<v Speaker 1>States Alabama in particular, in this case, we're going after

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<v Speaker 1>northern newspapers and media who were covering the civil rights

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<v Speaker 1>movement UM and UH suing them reliable for statements that

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<v Speaker 1>were just inadvertently trivially false. And then Alabama juries were

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<v Speaker 1>giving huge damage ords and the idea was to try

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<v Speaker 1>to deter any newspapers in the country from reporting what

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<v Speaker 1>was actually going on in the South. And Thomas seemed

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<v Speaker 1>to ignore that when he said the states are fully

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<v Speaker 1>able to handle these kinds of claim. Explain the importance

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<v Speaker 1>of the New York Times of your Sullivan decision today,

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<v Speaker 1>and whether you see any areas where it might be

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<v Speaker 1>encroached upon, Well, I've been. Sullivan has has come to

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<v Speaker 1>be regarded by almost everyone who thinks about constitutional law

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<v Speaker 1>is one of the great decisions of the Supreme Court. UM.

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

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<v Speaker 1>to use their libel laws to prevent individuals and newspapers

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<v Speaker 1>and magazines and individual citizens from criticizing government action and

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<v Speaker 1>public officials. So if we had the law of libel

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<v Speaker 1>as it existed, as Thomas would like to re establish it,

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<v Speaker 1>for example, then it would be possible just to give

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<v Speaker 1>an illustration for Donald Trump UH to sue UM the

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<v Speaker 1>New York Times UH for a statement that was inadvertently

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<v Speaker 1>inaccurate about what Donald Trump had for lunch, UH, and

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<v Speaker 1>a sympathetic jury could find out was defamatory and could

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

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<v Speaker 1>but that's exactly what was happening when New York Times

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<v Speaker 1>and Solovan was decided. UH. So Sullivan is a fundamental

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<v Speaker 1>decision that has protected freedom of the press, freedom of

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<v Speaker 1>speech in this country and then has enabled a democracy

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<v Speaker 1>to flourish. Thank you so much for being on the show.

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

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<v Speaker 1>His new book is The Free Speech Century. It's a

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<v Speaker 1>collection of essays. Thanks for listening to the Bloomberg Law Podcast.

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<v Speaker 1>You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on bloomberg dot com slash podcast. I'm June Brosso.

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<v Speaker 1>This is Bloomberg