By: Zachary Tooman
Lamenting Richard Nixon’s nomination of William Rehnquist for Associate Justice in December 1971, Dr. Hunter Thompson labeled Rehnquist a “vengeful geek” who would, along with fellow nominee Lewis Powell, “reduce the U.S. Supreme Court to the level of a piss-poor bowling team in Memphis,” and create a “disastrous, nazi-bent shift of the federal government’s Final-Decision-making powers for generations.”
Thompson may have been early in his forecast, but his depiction of a vengeful Justice certainly seems apt when considering Justice Clarence Thomas after his bruising confirmation hearings. Thomas struck back against his detractors in those hearings and – in the wake of an even more belligerent confirmation in 2018 – seems to be taking the fight further.
The Supreme Court last term denied the petition for a writ of certiorari in McKee v. Cosby. The First Circuit held that, because McKee had disclosed to a reporter her allegations of rape by a celebrity, she had made herself a limited purpose public figure – a person who intentionally or inadvertently becomes widely associated with a public controversy, debate, or dispute – and was therefore barred from recovering damages for defamation. Concurring in the denial, Justice Thomas argued to dismantle First Amendment jurisprudence. And, most significantly, his concurrence targeted an audience of one: Justice Brett Kavanaugh.
A. McKee and Thomas
In December 2014, petitioner Kathrine McKee, an actress and performer, publicly accused Bill Cosby, an actor and comedian, of forcible rape some four decades earlier. Cosby’s attorney responded by letter to McKee. McKee alleged that Cosby’s attorney also leaked the letter to the press in an effort to distort her biography, damage her reputation, and in general to shame, embarrass, harass, and humiliate her.
McKee filed a state law defamation suit against Cosby in federal court, but the case was dismissed, with the dismissal upheld in the Court of Appeals for the First Circuit. The Court of Appeals applied New York Times Co. v. Sullivan and its progeny – the Supreme Court’s landmark line of cases delineating definitions of defamation – and found that, because McKee had placed herself into a public controversy, she was a limited purpose public figure.
And because McKee was a limited purpose public figure, she could not recover defamation damages unless she demonstrated that the statements made about her were made with “actual malice” – that is, that the statements were made “with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.”
The Supreme Court agreed with the lower courts and denied certiorari. Justice Thomas concurred in the denial and wrote separately to invite the Court to revisit its precedents and to overturn New York Times and its progeny.
Thomas rehearsed the predictable originalist script: he called attention to the “original meaning” of the First and Fourteenth Amendments, traced the history of common law libel from England to the Colonies, and accused the Court of crafting “policy-driven decisions masquerading as constitutional law.” Ultimately, Thomas found little textual evidence or historical support for the actual malice standard as announced in New York Times.
But Thomas monologues for an audience of one: Justice Brett Kavanaugh.
B. Precedent and Prerogative
Originalist judges and Justices readily overturn precedent to counter what they view as corrupt jurisprudential activism or alternatively when they simply believe that a case was wrongly decided. Thus, it seems unlikely that Thomas needs to work too hard to convince most of his conservative brethren to ignore stare decisis and to consider overturning New York Times.
Indeed, a majority of the Court in its last term – a mere three months after Thomas’s concurrence in McKee – acknowledged its amenability to overturning precedent in Franchise Tax Board of California v. Hyatt: an opinion also authored by Justice Thomas himself. Justice Breyer’s lengthy and scathing dissent in Hyatt decried the conservative majority’s eagerness to overturn precedent, lamenting that the decision“can only cause one to wonder which cases the Court will overrule next.”
New York Times, while not the obvious next choice, seems likely to soon be reconsidered when considering Thomas’s intended audience in McKee.
Chief Justice Roberts has proved more than amenable to limiting free speech rights as long as those rights don’t belong to corporations or wealthy campaign donors: individual speakers should mind their manners.
Similarly, Justice Alito has been described as “the least free-speech libertarian on the Roberts Court.”
Justice Gorsuch, too, has demonstrated a willingness to cabin free speech: the then Tenth Circuit Judge in a 2010 case protected an internet publisher simply because of precedent, rebuked his colleagues for going further to defend the precedent, and signaled his amenability to libel claims against publishers of parody.
Justice Kavanaugh is the lone potential hold-out, and Thomas’s concurrence in McKee clearly targets Brother Brett.
C. Fear and Loathing
The actual malice standard as announced in New York Times provides vast protection for speakers who criticize public figures, with former Justice Byron White even lamenting that the case inaugurated an “almost impossible” burden for plaintiffs to prove defamation. But one man’s burden is another man’s blessing, and the standard offers a stout safeguard for speakers and publishers.
The common law libel standards that Thomas would have the Court return to are especially solicitous to government actors. And Thomas continuously quotes materials that argue for protecting the public reputations of government actors, but especially magistrates and judges. As Thomas observes, however, common law protections for speakers extended only to the public conduct of public men, leaving speakers vulnerable to legal action for commenting on public figures’ private characters.
It is against this common law backdrop, Thomas argues, that the First and Fourteenth Amendments were framed. And under this model, government actors retain a remedy for “their injured reputations.”
It would be difficult to overstate the protections that New York Times’s “actual malice” standard affords speakers and publishers; similarly, it would be difficult to overestimate the impact that overturning that standard would have on those speakers and publishers.
Many authors and scholars have opined at length – including in the New York Times – on the apocalyptic impact that such a ruling would have on free speech. Reverting to common law libel standards would leave speakers incredibly vulnerable – that is, if people even chose to speak at all: this legal vulnerability would surely chill speech, leaving people fearful of the new legal perils of discourse.
But chilling criticism of public figures is arguably Thomas’s intention. Indeed, some people are still upset about Thomas’s treatment so many decades ago. After Kavanaugh’s damaging Senate hearings, so much like his own contentious confirmation, Thomas no doubt targeted the junior Justice with his calculated concurrence in McKee. And Kavanaugh, fearful of future defamation and loathing the invincible speakers who targeted him, will likely be ready and willing to entertain reconsiderations of New York Times.