Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcast. Supreme Court Justice
Speaker 1: Clarence Thomas is calling for the Court to overturn the
Speaker 1: landmark four New York Times v. Sullivan ruling, which protects
Speaker 1: news organizations from most libel suits when they write about
Speaker 1: public figures. Joining me is one of the country's leading
Speaker 1: First Amendment scholars, Jeffrey Stone, Professor at the University of
Speaker 1: Chicago Law School. His new book is The Free Speech Century,
Speaker 1: a collection of essays on First Amendment jurisprudence. Jeff Thomas
Speaker 1: expressed this opinion with a Supreme Court order that refused
Speaker 1: to revive a defamation lawsuit against Bill Cosby in order
Speaker 1: he agreed to what was his reasoning well, Thomas's reasoning
Speaker 1: was basically a strict originalist approach. Um. He essentially said
Speaker 1: that it was time, in his view, for the Court
Speaker 1: to reconsider uh the nineteen sixty four decision in New
Speaker 1: York Times and Sullivan because as he laid it out,
Speaker 1: at the time the First Amendment was adopted, UM, individuals
Speaker 1: could sue for defamation if someone else had made a
Speaker 1: statement that to fame their reputation, UM, and that they
Speaker 1: could recover as long as the persons who made the
Speaker 1: statement could not prove the statement to be true. That
Speaker 1: had been the common law in England, it was a
Speaker 1: common law in the United States, and it was the
Speaker 1: law in most states until the nineteen sixty four in
Speaker 1: the Supreme Court decision in Sullivan and So Thomas's argument
Speaker 1: was that, being a strict originalist, that we should go
Speaker 1: back to what the framers themselves would have understood the
Speaker 1: First Amendment to mean when it was adopted. And his
Speaker 1: argument is that they would not have understood the First
Speaker 1: Amendment to have interfered with the traditional common law of libel.
Speaker 1: The original meaning of the First Amendment the same as
Speaker 1: it has been in the nearly three decades that Thomas
Speaker 1: has been on the Court. So what might be his
Speaker 1: purpose in suggesting this? Now, Well, that's a that's a
Speaker 1: great question. I Mean, one possibility that some people have
Speaker 1: raised is that because President Trump has in a variety
Speaker 1: of ways condemned the media, and even called about what
Speaker 1: he said opening up libel laws. Uh that Um Thomas
Speaker 1: is in some way responding to Trump's suggestion that the
Speaker 1: Court should reconsider New York Times insulivan Um. The other
Speaker 1: possibility is that now that we have a court with
Speaker 1: five fiercely conservative justices on it, UM Thomas thinks it's
Speaker 1: possible that they would be willing to go back and
Speaker 1: and re examine a whole lot of decisions from the
Speaker 1: past that are inconsistent with what he believes to be
Speaker 1: the proper method of constitutional interpretation. Is that likely have
Speaker 1: any of the new justices or you know, the conservative
Speaker 1: justices exp rest desire or an inclination to revisit time
Speaker 1: to be Sullivan, Not to my knowledge, no, I think
Speaker 1: that UM. In some of the confirmation hearings, for example,
Speaker 1: I think Gorcitch was asked about that and indicated that
Speaker 1: he followed precedent, and most of the justices who have
Speaker 1: taken even a strong originalist view of consitual interpretation, of
Speaker 1: view that I take is nonsense. To be clear, UM,
Speaker 1: have also conceded that precedent is precedent and that although
Speaker 1: they might be inclined to apply in originalist view to
Speaker 1: cases that have not previously been issued, that's not previously
Speaker 1: been resolved, they would still tend to follow the precedence
Speaker 1: even if they disagreed with them. In your book, there
Speaker 1: are several articles that explain the First Amendment and how
Speaker 1: it's sort of different from other amendments, and that its
Speaker 1: interpretation began later on. It's really a modern amendment, you
Speaker 1: might say. Well, Um, the first time that the Supreme
Speaker 1: Court of the United States directly addressed the meaning of
Speaker 1: the First Amendment was not until nine UM. And the
Speaker 1: reason for that was, in part, uh that the First
Speaker 1: Amendment was generally understood until later to apply only to
Speaker 1: the federal government and most laws that regulate speech a
Speaker 1: laws of states and of cities, and therefore most First
Speaker 1: Amendment issues did not um. Uh. Most free speech issues
Speaker 1: did not implicate the First Amendment until that time. So
Speaker 1: really the Supreme Court first began looking at the meeting
Speaker 1: of the First Amendment UM a hundred years ago UM.
Speaker 1: And it was not until nineteen sixty four that the
Speaker 1: Court looked at the issue of libel and in fairness.
Speaker 1: As Thomas says, uh, it is the case that when
Speaker 1: the First Amendment was adopted UM, that it was understood
Speaker 1: that defamation was actionable as long as the plaintifficult prove
Speaker 1: that the defendant had made a statement that defamed the reputation,
Speaker 1: and the defendant therefore then had the burden approving truthfulness
Speaker 1: and that they could not prove truthfulness that they were liable.
Speaker 1: What New York Times and Sullivan did is as with
Speaker 1: so many other constitutional provisions UM, the Court realized over
Speaker 1: time that UM it was necessary to give a more
Speaker 1: robust interpretation and understanding of constitutional provisions that might have
Speaker 1: existed a hundred and fifty years before UM and in particular,
Speaker 1: New York Times and Sullivan came about because UM Southern
Speaker 1: States Alabama in particular, in this case, we're going after
Speaker 1: northern newspapers and media who were covering the civil rights
Speaker 1: movement UM and UH suing them reliable for statements that
Speaker 1: were just inadvertently trivially false. And then Alabama juries were
Speaker 1: giving huge damage ords and the idea was to try
Speaker 1: to deter any newspapers in the country from reporting what
Speaker 1: was actually going on in the South. And Thomas seemed
Speaker 1: to ignore that when he said the states are fully
Speaker 1: able to handle these kinds of claim. Explain the importance
Speaker 1: of the New York Times of your Sullivan decision today,
Speaker 1: and whether you see any areas where it might be
Speaker 1: encroached upon, Well, I've been. Sullivan has has come to
Speaker 1: be regarded by almost everyone who thinks about constitutional law
Speaker 1: is one of the great decisions of the Supreme Court. UM.
Speaker 1: What it did was to eliminate the potential of government, states, cities, whatever, um,
Speaker 1: to use their libel laws to prevent individuals and newspapers
Speaker 1: and magazines and individual citizens from criticizing government action and
Speaker 1: public officials. So if we had the law of libel
Speaker 1: as it existed, as Thomas would like to re establish it,
Speaker 1: for example, then it would be possible just to give
Speaker 1: an illustration for Donald Trump UH to sue UM the
Speaker 1: New York Times UH for a statement that was inadvertently
Speaker 1: inaccurate about what Donald Trump had for lunch, UH, and
Speaker 1: a sympathetic jury could find out was defamatory and could
Speaker 1: award him a million dollars in damages. And that's crazy,
Speaker 1: but that's exactly what was happening when New York Times
Speaker 1: and Solovan was decided. UH. So Sullivan is a fundamental
Speaker 1: decision that has protected freedom of the press, freedom of
Speaker 1: speech in this country and then has enabled a democracy
Speaker 1: to flourish. Thank you so much for being on the show.
Speaker 1: That's Jeffrey Stone, professor at the University of Chicago Law School.
Speaker 1: His new book is The Free Speech Century. It's a
Speaker 1: collection of essays. Thanks for listening to the Bloomberg Law Podcast.
Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,
Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.
Speaker 1: This is Bloomberg