Justice Thomas dissented this morning from the Supreme Court declining to hear a defamation case against the Southern Poverty Law Center for labeling a Christian organization a “hate group” (a designation that has led, in the past, to violence against an SPLC target). Coral Ridge, the Christian group in question, was barred as a result from AmazonSmile, Amazon’s charitable-giving platform. Thomas wants the Court to reconsider its decision in New York Times v. Sullivan, which imposed a First Amendment rule requiring a heightened standard of “actual malice” to prove a defamation case brought by a public figure — i.e., that the defamer knew or recklessly disregarded the truth. Thomas:
New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. . . . Those decisions have no relation to the text, history, or structure of the Constitution. . . . We have never even inquired whether the First or Fourteenth Amendment, as originally understood, encompasses an actual-malice standard . . . I would grant certiorari in this case to revisit the “actual malice” standard. This case is one of many showing how New York Times 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. It placed Coral Ridge on an interactive, online “Hate Map” and caused Coral Ridge concrete financial injury by excluding it from the AmazonSmile donation program. Nonetheless, unable to satisfy the almost impossible actual-malice standard this Court has imposed, Coral Ridge could not hold SPLC to account for what it maintains is a blatant falsehood. . . . Because the Court should not insulate those who perpetrate lies from traditional remedies like libel suits unless the First Amendment requires us to do so, I respectfully dissent from the denial of certiorari. (Quotations and citations omitted).
Thomas is right that the constitutional foundations of New York Times v. Sullivan are dubious and ought to be considered more closely. This is not only an argument from the right: If the Court were to follow Democrats’ demand to overrule Citizens United and reject the notion of corporations having First Amendment rights, it would have to overturn New York Times v. Sullivan, which deals explicitly with how to prove the actual-malice state of mind of a corporate defendant. That being said, there would be some significant stare decisis arguments for retaining New York Times v. Sullivan, given that the standard has proven workable in practice, and it is far from clear what would replace it. This is likely to remain a constitutional windmill that is impervious to Thomas’s jousting.