Justice Thomas calls for re-examining landmark libel case

WASHINGTON — Justice Clarence Thomas says the Supreme Court should consider overturning a 55-year-old landmark ruling that makes it hard for public figures to win libel suits, writing in a case involving a woman who says Bill Cosby raped her.

Thomas took aim at New York Times v. Sullivan and similar cases that followed it, calling them “policy-driven decisions masquerading as constitutional law.”

“We should not continue to reflexively apply this policy-driven approach to the Constitution,” Thomas wrote in a 14-page opinion that no other justice joined.

The opinion comes against the backdrop of President Donald Trump’s repeated calls to make it easier to sue for libel. Last weekend, Trump reacted to a Saturday Night Live skit by asking on Twitter, “How do the Networks get away with these total Republican hit jobs without retribution? Likewise for many other shows? Very unfair and should be looked into.”

On Tuesday, the high court rejected an appeal from actress Kathrine McKee, who said Cosby raped her in 1974. McKee sued Cosby for damaging her reputation after a lawyer for the comedian allegedly leaked a letter attacking McKee. Two lower courts ruled against her and dismissed the case, based largely on McKee’s role as a public figure.

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The Sullivan case set a very high bar for public officials to win a libel suit and hefty money awards over published false statements that damaged their reputations. The high court extended the 1964 decision in the ensuing decades to make it tough for celebrities, politicians and other public figures to win defamation cases.

Thomas is the justice who most often calls for jettisoning Supreme Court rulings that he says do not comport with the meaning of the Constitution at the time it was adopted.

“The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” he wrote.

He is not the first justice to criticize the 1964 case, though he appears to be the first to issue a call for its reconsideration in a Supreme Court opinion. The late Justice Antonin Scalia took a similarly dim view of the Sullivan ruling, once saying in a televised interview that he abhorred it.

Mark Sherman, The Associated Press