Justices Clarence Thomas and Neil Gorsuch on Friday said the Supreme Court should revisit the breadth of the landmark First Amendment decision in New York Times v. Sullivan and explore how it applies to social media and technology companies.
That 1964 ruling created a higher bar for public figures to claim libel and has been a bedrock of US media law, but the two conservative justices said it’s time to take another look. “Since 1964,” Gorsuch wrote Friday, “our Nation’s media landscape has shifted in ways few could have forseen.” He added that “thanks to the revolutions in technology, today virtually anyone in this county can publish virtually anything for immediate consumption virtually anywhere in the world.”
Gorsuch and Thomas wrote as they dissented when the court declined to take up a case from the son of a former prime minister of Albania who claimed several statements were defamatory in a book that was later turned into the Hollywood film, “War Dogs.” Friday was the first time Gorsuch, a nominee of President Donald Trump, joined Thomas’ consistent calls to look at the historic ruling. “Not only has the doctrine evolved into a subsidy for published falsehoods on a scale no one could have foreseen, it has come to leave far more people without redress than anyone could have predicted,” Gorsuch said.
He added that previous tests courts have used “seem increasingly malleable and even archaic when almost anyone can attract some degree of public notoriety in some media segment.” Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law, said Gorsuch’s public move “is a pretty big deal.” “Sullivan provides crucial protection of the independence of news outlets, whose reporting might otherwise be chilled, even for accurate stories, if it were easier to sue them for defamation,” Vladeck said. “The more justices who look poised to potentially revisit that precedent in the coming years, the more alarming Justice Thomas’s previously idiosyncratic critiques become.”