A new book describes how in confirmation hearings in 1991, the future supreme court justice Clarence Thomas said he had “no agenda” to change free speech protections established by New York Times v Sullivan – the landmark 1964 ruling Thomas now says should be reconsidered.
“We should protect our first amendment freedoms as much as possible,” Thomas said 34 years ago, in exchanges long obscured by history.
Now, however, as influential rightwing figures push for Times v Sullivan to be overturned by a court tipped decisively right under Donald Trump, Thomas has changed his mind. In opinions released in 2019, 2021 and 2023, he has questioned Times v Sullivan, bemoaning how the ruling supposedly allows media organizations to “cast false aspersions on public figures with near impunity”.
Thomas’s evolving views are described in Murder the Truth: Fear, the First Amendment and a Secret Campaign to Protect the Powerful, by David Enrich, a New York Times reporter, and to be published on 11 March. The Guardian obtained a copy.
Enrich focuses on recent rightwing attacks on the press, prominently including the wrestler Hulk Hogan’s victory over the website Gawker in 2016, in a case concerning a sex tape and bankrolled by the rightwing tech billionaire Peter Thiel, and a settlement won by Melania Trump against the Daily Mail in 2017, over claims she once worked as an escort.
Those were victories for the plaintiff but in general, Times v Sullivan stands as a bulwark in support of press freedom.
The case concerned an ad, paid for by civil rights groups, which proved to contain factual inaccuracies. The police commissioner of Montgomery, Alabama, sued the Times and won. The paper took the case to the US supreme court, which ruled unanimously in its favor.
The ruling established the “actual malice” standard for defamation suits, under which plaintiffs must show a statement was published “with knowledge that it was false or with reckless disregard for the truth”. As defined by Protect Democracy, which campaigns to defend press freedom, plaintiffs must prove four things: that a defamatory statement conveyed facts, not opinion; that those facts were false; that the statement was delivered to others; and that the plaintiff was harmed.
The resulting protection of press freedom has long been the subject of rightwing ire. As Enrich shows, however, Thomas did not initially join in. During his confirmation hearings, he was asked by Patrick Leahy, a Democratic senator from Vermont, if Times v Sullivan “set too high a bar for public figures to win libel cases”.
Thomas said: “I guess I haven’t looked at it from that standpoint.”
Asked if he saw “any need to change that standard”, Thomas said: “I at this moment certainly have not thought about changing that standard and have no agenda to change that standard. My view, as I’ve attempted to express here, is that we should protect our first amendment freedoms as much as possible.”
That Thomas no longer espouses such support is a shift widely held to have been formed by his own experiences at the hands of the press.
As Enrich writes, as Leahy questioned Thomas, Thomas had already been subject to “journalists … prying into [his] career and life story”, with “less comfortable territory” including his leadership of the US Equal Employment Opportunities Commission, “the church he and [his wife] Ginni attended, and his sister’s disclosure to reporters that she’d once had an abortion”.
Despite that, in the hearing room, Thomas indicated that “even though he felt like he was getting raked over the coals, a free press – as articulated by the court in Sullivan – was paramount”.
“And I believe that even as I was going through it and even as I am going through it,” Thomas said. “I think what the court was attempting to do there [in Sullivan] was of course to balance the first amendment rights, the freedom of the press as we know it, and to not have that in a way impeded by one’s abilities to sue the media or intimidate the media.
“That is something of course that one could debate, but I think it is a clear demonstration on the court’s part that the freedom of the press is important in our society, it’s critical in our society, even though individuals may at times be hurt by the use of that right.”
Supreme court nominees often adopt evasive or careful language in confirmation hearings, as evidenced when the three justices Trump nominated in his first term were asked if they supported the removal of the federal right to abortion. All three dissembled; all three eventually voted to remove the right.
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But Thomas has emerged as a particular lightning rod for liberal anger, including calls for his impeachment and removal.
In 1991, as Enrich writes, Thomas was about to find himself at the center of a historic political fight. Less than three weeks after his exchange with Leahy, “word leaked to reporters at Newsday and National Public Radio that one of Thomas’s former EEOC subordinates, Anita Hill, had accused him of sexual harassment”.
Thomas vehemently denied Hill’s claims but endured further, tempestuous hearings, complaining of a “high-tech lynching” but being confirmed by a historically narrow margin.
Enrich notes that Michael Luttig, a conservative lawyer detailed to shepherd Thomas onto the court (now a prominent anti-Trump conservative), described the nominee “‘crying and hyperventilating’ about how ‘these people have destroyed my life’.”
More recently, Thomas has been the subject of extensive reporting, led by ProPublica, about his failure to declare lavish gifts from rightwingers with business before the court. Perhaps concurrently, Thomas’s publicly expressed views on Times v Sullivan have changed.
In 2019, as the court rejected an appeal by a woman who accused the comedian Bill Cosby of sexual assault, Thomas said Times v Sullivan should be reconsidered, writing: “New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”
He restated that position in 2021. In a 2023 case brought by a West Virginia mining executive turned Republican political candidate, Thomas said press protection under Times v Sullivan “comes at a heavy cost, allowing media organizations and interest groups ‘to cast false aspersions on public figures with near impunity’.”
Such comments have been widely noted, particularly in light of Trump’s oft-stated wish to “open up” US libel laws and as Thomas forms part of a 6-3 rightwing majority that has handed Trump major wins, not least in ruling that presidents have some legal immunity. Enrich’s book appears at the start of Trump’s second term, as the administration takes a sledgehammer to governmental norms and structures.
Attacks on Times v Sullivan have proliferated. Only last week, the casino mogul Steve Wynn, a close Trump ally, asked the supreme court to revisit Times v Sullivan regarding his defamation suit against the Associated Press.
Neil Gorsuch, one of three rightwingers confirmed to the court in Trump’s first term, has joined Thomas in calling for Times v Sullivan to be reconsidered. Reporting suggests other rightwingers, Trump appointee Brett Kavanaugh among them, are not ready to attack Times v Sullivan. Nonetheless, rightwing threats to press freedom of the kind Enrich examines may soon focus attention on the court once again.
