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Clarence Thomas wants to overturn Times v. Sullivan

DanRydell

By DanRydell
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DanRydell

DanRydell 799

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New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own federal rule by balancing the competing values at stake in defamation suits. 

We should not continue to reflexively apply this policy driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we. 

https://www.supremecourt.gov/opinions/18pdf/17-1542_ihdk.pdf

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TwiceHorn

TwiceHorn 31273

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Well Clarence, nothing in the Constitution says a gotdamn thing about defamation cases.  Just about all 1st Amendment cases are policy driven.  Are you actually trying to cut back the reach of the 1st Amendment?

Still a little pissy about Anita Hill are you, old man?

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SuingToGetAMessageBoard?

SuingToGetAMessageBoard? 3861

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Clarence Thomas seems like he sucks.

 

HOWEVA, I know it is a bit of a contrarian point, but too many people hide behind the 1st Amendment to post outright fabrications in politics.  If you removed NYT v. Sullivan from the universe, maybe you'd have less Jade Helm, QAnon, pizzagate, birtherism, whatever.   It's not like European countries are crushingly oppressive and there is generally no equivalent to the 1st amendment over there.  That said, the actual malice standard is probably more good than bad.  I just think it would be nice to do something about the fact that people have discovered that misinformation is so hard to defeat with just the boring truth.

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Zombie

Zombie 284

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Clarence Thomas seems like he sucks.
 
HOWEVA, I know it is a bit of a contrarian point, but too many people hide behind the 1st Amendment to post outright fabrications in politics.  If you removed NYT v. Sullivan from the universe, maybe you'd have less Jade Helm, QAnon, pizzagate, birtherism, whatever.   It's not like European countries are crushingly oppressive and there is generally no equivalent to the 1st amendment over there.  That said, the actual malice standard is probably more good than bad.  I just think it would be nice to do something about the fact that people have discovered that misinformation is so hard to defeat with just the boring truth.
I hear you. But I'd much rather have a society where people can spread misinformation without recourse than a society where an individual or entity with deep pockets can chill speech they dislike by malicious litigation.
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TwiceHorn

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Also, he only basically cites to Whizzer White dissents, so I don't think he's going to get much traction on this.  He also doesn't seem to have a firm grasp on what "federalizing" an issue means.  I am as big a federalism nut as you will find and having the First Amendment impose a limitation on state defamation laws (and copyright law--fair use) does not bother me in the least.

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DanRydell

DanRydell 799

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17 minutes ago, SuingToGetAMessageBoard? said:

Clarence Thomas seems like he sucks.

 

HOWEVA, I know it is a bit of a contrarian point, but too many people hide behind the 1st Amendment to post outright fabrications in politics.  If you removed NYT v. Sullivan from the universe, maybe you'd have less Jade Helm, QAnon, pizzagate, birtherism, whatever.   It's not like European countries are crushingly oppressive and there is generally no equivalent to the 1st amendment over there.  That said, the actual malice standard is probably more good than bad.  I just think it would be nice to do something about the fact that people have discovered that misinformation is so hard to defeat with just the boring truth.

I'm certainly open to tweaking the actual malice standard if it's been interpreted to the point that it's protecting bad faith.

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TwiceHorn

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More I think about it, the more I think I may be right about his resentment of the Anita Hill mess poking through his judicial opinions.  I think most of her testimony was probably protected by a congressional privilege, in addition to actual malice and he's probably gotten riled up again by the Kavanagh hearings.

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TwiceHorn

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Let's give this whole thing a little bit of perspective.  This is a concurrence/dissent in a denial of certiorari.  It is about the most impotent form of Supreme Court justice opining that exists.

 

It is a judicial popcorn fart in the wind.  It reveals Thomas to be kind of a tool, but we already knew that.  This opinion represents about zero danger to the holding of NYT v. Sulliivan.  In fact, if his opinion had any traction elsewhere on the Court, he probably would not have graced us with this most obiter of dicta.

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Brisketexan

Brisketexan 104609

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5 minutes ago, TwiceHorn said:

Let's give this whole thing a little bit of perspective.  This is a concurrence/dissent in a denial of certiorari.  It is about the most impotent form of Supreme Court justice opining that exists.

 

It is a judicial popcorn fart in the wind.  It reveals Thomas to be kind of a tool, but we already knew that.  This opinion represents about zero danger to the holding of NYT v. Sulliivan.  In fact, if his opinion had any traction elsewhere on the Court, he probably would not have graced us with this most obiter of dicta.

So, to summarize, Thomas chose to take a really stupid position, and did so in the most limp-dick way possible.

Peak Clarence Thomas, that's what that is.

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DanRydell

DanRydell 799

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Let's give this whole thing a little bit of perspective.  This is a concurrence/dissent in a denial of certiorari.  It is about the most impotent form of Supreme Court justice opining that exists.
 
It is a judicial popcorn fart in the wind.  It reveals Thomas to be kind of a tool, but we already knew that.  This opinion represents about zero danger to the holding of NYT v. Sulliivan.  In fact, if his opinion had any traction elsewhere on the Court, he probably would not have graced us with this most obiter of dicta.


In terms of immediacy, I agree. But it’s a bat signal to FedSoc, et. al. to devote some resources to scholarship on why the actual malice standard is inconsistent with the text or original understanding of the First Amendment so there are some law review articles to cite to in the future if this becomes a pet issue of conservative legal groups in the future.
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Nivek

Nivek 16859

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Anytime you start to get all gushy about H.W. Bush, just remember he gave us the Willie Horton ad and Clarence Thomas. Two catalysts to today's absolute disfunction in politics. 

And the fake crack buy. Though I did appreciate his negotiation technique with the Japanese.
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TwiceHorn

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57 minutes ago, DanRydell said:

 


In terms of immediacy, I agree. But it’s a bat signal to FedSoc, et. al. to devote some resources to scholarship on why the actual malice standard is inconsistent with the text or original understanding of the First Amendment so there are some law review articles to cite to in the future if this becomes a pet issue of conservative legal groups in the future.

I don't think the FedSoc gives a shit about this because it doesn't directly involve subjugating anyone, or suppressing votes, or religion.  In fact, the general tendency of Thomas' argument is to weaken the religious aspects of the First Amendment.  Policy driven.  Laughable, man.

It's even a bad federalism case.

Seriously, I think the Kavanaugh hearing got him into flashback mode and how badly he wishes he could sue Anita Hill & Co.  But that danged ol' First Amendment, hence the screed.

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TwiceHorn

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1 minute ago, High Plains Drifter said:

I thought Clarence Thomas was just a mannequin? Who knew he (it) could actually write?

He does have the help of clerks.  I gotta hand it to him, although espousing some pretty crackpot views on things like this, he's pretty clear.  Maybe his clerk qualifications include "espousing insanity with remarkably clear prose."  I suppose you could tag all of them with that.

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Larry T. Spider

Larry T. Spider 1740

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Packing the court is a full on regarded idea. What would we be saying right now if trump was pushing that? He’s already got an advantage, which could be expanded with RBG or anybody else going down in the next year. Add two more picks for him and it would be lost for a generation or we go into a civil war fighting it. So why would I be ok with my side doing the same thing? Seems a bit hypocritical.

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wildcat09

wildcat09 29243

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2 hours ago, HenryJames said:

This would bankrupt right wing media.

Naw, right-wing media would get special protection from the SCOTUS with a ruling that ends with some variation of "our decision in this case is limited solely to _______________ and should not be understood to apply to any other scenarios." 

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TwiceHorn

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12 hours ago, Larry T. Spider said:

Packing the court is a full on regarded idea. What would we be saying right now if trump was pushing that? He’s already got an advantage, which could be expanded with RBG or anybody else going down in the next year. Add two more picks for him and it would be lost for a generation or we go into a civil war fighting it. So why would I be ok with my side doing the same thing? Seems a bit hypocritical.

Agreed.  I could maybe go for 11 or 13 justices, maybe, in hope that we got a little broader cross-section of law dogs up there.  But packing the court in response to perceived partisan problems is just begging for the court to be populated with a whipsawing (im)balance of Wm. O. Douglases and Clarence Thomases.

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wildcat09

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38 minutes ago, TwiceHorn said:

Agreed.  I could maybe go for 11 or 13 justices, maybe, in hope that we got a little broader cross-section of law dogs up there.  But packing the court in response to perceived partisan problems is just begging for the court to be populated with a whipsawing (im)balance of Wm. O. Douglases and Clarence Thomases.

GOP already packed the court when they refused to hold hearings for Obama’s nominee. Not responding won’t stop them from doing it again.

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Foosters

Foosters 17732

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8 minutes ago, wildcat09 said:

GOP already packed the court when they refused to hold hearings for Obama’s nominee. Not responding won’t stop them from doing it again.

Yeah, what is this slippery slope argument? Dems better not use the rules to their advantage or else the GOP may do the same?  

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bad_teammate

bad_teammate 13132

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42 minutes ago, TwiceHorn said:

But packing the court in response to perceived partisan problems is just begging for the court to be populated with a whipsawing (im)balance of Wm. O. Douglases and Clarence Thomases.

That's already happened; the Gorsuch and Kavanaugh out front shoulda told ya.

The problem with operating on informal rules is that they require all parties involved to agree to follow them and act in good faith. However, when offered a strong incentive, those who are not operating in good faith will cheat the informal system. This is what the Republicans have done. In doing so, they broke the informal system. The illusion you're suffering under right now is that the informal system is not broken, and that Democrats being nice will just perpetuate its continued existence.

If someone is genuinely concerned about setting an upper limit on SC, then we can (and perhaps should) formalize the makeup of the SC. Formulate a Constitutional amendment that determines a fair process and number of appointed justices.

Until then, the letter of the law should be followed.

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David Dennison

David Dennison 18656

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1 minute ago, bad_teammate said:

That's already happened; the Gorsuch and Kavanaugh out front shoulda told ya.

The problem with operating on informal rules is that they require all parties involved to agree to follow them and act in good faith. However, when offered a strong incentive, those who are not operating in good faith will cheat the informal system. This is what the Republicans have done. In doing so, they broke the informal system. The illusion you're suffering under right now is that the informal system is not broken, and that Democrats being nice will just perpetuate its continued existence.

If someone is genuinely concerned about setting an upper limit on SC, then we can (and perhaps should) formalize the makeup of the SC. Formulate a Constitutional amendment that determines a fair process and number of appointed justices.

Until then, the letter of the law should be followed.

I think you could actually do it with legislation.

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