Revisiting the First Amendment

In January 2013, after nearly seven years of silence on the bench, US Supreme Court Justice Clarence Thomas made a joke. Just four words – possibly five, there may have been a transcription error – about the quality of education at Yale. The interjection set off a debate as to whether the joke was truly self-deprecating (Thomas attended Yale) or suggested a lingering resentment at a perceived stigma Thomas had felt from being admitted to the college through an affirmative action quota. Four days ago, while concurring with the court’s refusal to hear an appeal from one of Bill Cosby’s accusers, Thomas issued another provocative pronouncement when he wrote that the court’s ruling in a landmark libel case amounted to “policy-driven decisions masquerading as constitutional law”.

It is hard to overstate the significance of the 1964 New York Times v Sullivan ruling as a guarantee of American press freedom. Last year, the paper’s general counsel and vice-president, David McCraw, called it “a 9-0 smackdown of plaintiffs who saw libel suits as a legal extortion racket to be used to silence publishers.” L.B. Sullivan was a police commissioner in Alabama who claimed that an advertisement in the paper had damaged his reputation – even though he wasn’t named – and he sought $500,000 in compensation. In his analysis of the case McCraw points out that “It was one of dozens of libel suits being used by Southern power brokers to try to silence the press.”

What the ruling did, in practical terms, was raise the burden of proof on public figures who sued for defamation, requiring that they show “actual malice” in the alleged smears. Glossing this legal term, the Times’ analyst Adam Liptak notes:  “To prove actual malice … a libel plaintiff must show that the writer knew the disputed statement was false or had acted with “reckless disregard.” That second phrase is also a term of art… [requiring proof] that the writer entertained serious doubts about the truth of the statement.” Quite recently the Supreme Court of Canada issued a similar decision, creating a new libel defence for “public interest responsible journalism” – where defamation occurred after a journalist had made reasonable efforts to verify facts in their report.

On the same day that Thomas’s opinion appeared, the family of Nicholas Sandmann, a student at Covington Catholic High School, sued the Washington Post for defamation. The family is seeking US$250 million in damages on the grounds that the Post “targeted and bullied” Sandmann last month by circulating a video that appeared to show him in a standoff with a Native American elder close to the Lincoln Memorial. The case is far from straightforward. Initial reports provoked a deluge of outrage online, but closer analysis revealed a more complex context. Prior to the encounter,  a fringe group called the Black Hebrew Israelites had harassed the  Covington students at length. Andrew Sullivan, who viewed extended footage of the incident, describes “extraordinary bigotry, threats of violence … disgusting racism, foul homophobia, and anti-Catholicism”  directed at the students. Most of the viral footage simplified the situation and misleadingly suggested that the Covington students had approached the elder.

The Sandmann lawsuit is a legal and cultural touchstone in the feverish debate on free speech in the age of Trump. The political stakes are evident in a statement issued by one of Sandmann’s attorneys who said the Post “recklessly ignored basic journalist standards because it was eager to advance its biased agenda against @realDonaldTrump by impugning individuals perceived to be his supporters.” The statement brings to mind Trump’s campaign promise to “open up our libel laws” so that “when The New York Times writes a hit piece … or when The Washington Post … writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.” In March 2017 Trump also tweeted: “The failing @nytimes has disgraced the media world. Gotten me wrong for two solid years. Change libel laws?”

These incidents are straws in the wind. As with the 2016 Bollea v Gawker verdict, which slyly exploited the nuances of Florida libel law to shutter a publication which had bedevilled many famous and powerful citizens, these incidents hint at a larger campaign to reduce the scope of America’s press freedoms. As with any First Amendment case, details tend to be symbolic. The damages sought against the Post, for instance, are exactly what Jeff Bezos paid for the entire company  just six years ago. In other words, empowered by a president who has made no secret of his hostility towards the media, the backlash against America’s extraordinarily broad and robust protections for a free press has begun to gather a troubling momentum.