Clarence Thomas Argues for Revisiting ‘Actual Malice’ Standard that Would Make It Easier to Sue Media for Defamation

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Justice Clarence Thomas once again issued a singular opinion from the nation’s highest court on Monday arguing for the reconsideration of a long-held legal standard.

At issue was the Supreme Court’s denial of a petition for a writ of certiorari in Coral Ridge Ministries Media, Inc. vs. Southern Poverty Law Center, declining to hear the case which challenged the “actual malice” standard for defamation claims involving public figures as established in the 1964 case New York Times Co. v. Sullivan. Thomas wrote a three-page dissenting opinion.

Last Friday, the justice made headlines for his concurring opinion in Dobbs v. Jackson Women’s Health Organization, which agreed with the conservative majority in overturning Roe v. Wade and upholding a Mississippi law banning virtually all abortions after the fifteenth week of pregnancy, with narrow exceptions for medical emergencies and “severe fetal abnormality” but not for rape or incest. Thomas, however, went a step further in his concurrence, arguing that just like the majority had held that the language in the Constitution did not grant a right to an abortion, it did not grant the rights that had been implied in other landmark cases.

“[I]n future cases, we should reconsider all of this Court’s substantive due process precedents,” he wrote, specifically naming Griswold v. Connecticut (1965, granting right of married persons to obtain contraceptives), Lawrence v. Texas (2003, right to engage in private, consensual sexual acts), and Obergefell v. Hodges (2015, right to same-sex marriage). “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”

In Thomas’ Coral Ridge dissent, he explicitly declared that the Supreme Court should also reconsider the actual malice standard established in Sullivan.

The case involved a Christian non-profit that applied to receive donations through AmazonSmile, a function on Amazon’s online shopping platform that allows customers to have a small percentage of their purchases directed to their designated charities. Coral Ridge’s application was denied by Amazon based on the Southern Poverty Law Center designating them an “anti-LGBT hate group” for their views on sexual orientation and marriage. Coral Ridge sued SPLC for defamation. The case, and the actual malice standard, were described by Thomas as follows (citations omitted):

Coral Ridge maintained that although it “opposes homosexual conduct” based on its religious beliefs, it is in no sense a “hate group.” To the contrary, it “has nothing but love for people who engage in homosexual conduct” and “has never attacked or maligned anyone on the basis of engaging in homosexual conduct.” Coral Ridge alleged that SPLC was aware that it was not a “hate group,” but falsely labeled it one anyway to “destroy the Ministry” by “dissuad[ing] people and organizations from donating to [it].”

SPLC responded that its “hate group” designation was protected by the First Amendment. The District Court agreed and dismissed Coral Ridge’s complaint for failure to state a claim. Because Coral Ridge conceded that it was a “public figure,” the court observed that Coral Ridge had to prove three elements to rebut SPLC’s First Amendment defense: the “hate group” designation had to be (1) provably false, (2) actually false, and (3) made with “actual malice.” The court concluded that SPLC’s “hate group” designation was not provably false because “‘hate group’ has a highly debatable and ambiguous meaning.” Additionally, the court held that Coral Ridge had not plausibly alleged that SPLC acted with “actual malice,” as defined by this Court’s decision in New York Times Co. v. Sullivan.

The actual malice standard has been a core issue in several recent noteworthy defamation cases, such as Sarah Palin’s suit against The New York Times and Johnny Depp and Amber Heard’s infamous legal brawl that ended with a jury verdict earlier this month. Critics have said this legal standard presents too high a burden for a public figure to overcome in order to defend themselves against malicious attacks on their reputation, but the Supreme Court has repeatedly shrugged off opportunities to revisit Sullivan.

Regarding Coral Ridge, Court of Appeals affirmed the dismissal of the case based on the actual malice standard, and Coral Ridge appealed to the Supreme Court, asking them to reconsider that standard.

“As I have said previously, ‘we should,'” wrote Thomas in his dissent, citing his previous opinions in which he referred to Sullivan and cases that were based on its ruling as “policy-driven decisions masquerading as constitutional law” and decisions that have “no relation to the text, history, or structure of the Constitution.”

The Court should have granted review in this case in order to “revisit” the actual malice standard, Thomas argued, because Sullivan “and its progeny have allowed media organizations and interest groups “to cast false aspersions on public figures with near impunity.'”

“SPLC’s ‘hate group’ designation lumped Coral Ridge’s Christian ministry with groups like the Ku Klux Klan and Neo-Nazis,” Thomas continued, put them “on an interactive, online ‘Hate Map’ and caused Coral Ridge concrete financial injury by excluding it from the AmazonSmile donation program.”

The actual malice standard functioned in a way that was “almost impossible” to satisfy, wrote Thomas, leaving Coral Ridge with no way to “hold SPLC to account for what it maintains is a blatant falsehood.”

The Court “should not insulate those who perpetrate lies from traditional remedies like libel suits,” he concluded, “unless the First Amendment requires us to do so.”

Read Thomas’ dissenting opinion here (last three pages of the orders).

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