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As Justice Clarence Thomas criticizes press freedom ruling, we discuss defamation standards




Supreme Court Justice Clarence Thomas speaks at the memorial service for former Supreme Court Justice Antonin Scalia at the Mayflower Hotel March 1, 2016 in Washington, DC.
Supreme Court Justice Clarence Thomas speaks at the memorial service for former Supreme Court Justice Antonin Scalia at the Mayflower Hotel March 1, 2016 in Washington, DC.
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Justice Clarence Thomas says the Supreme Court should consider overturning a 55-year-old landmark ruling that makes it hard for public figures to win libel suits, writing in a case involving a woman who says Bill Cosby raped her.

Thomas took aim at New York Times v. Sullivan and similar cases that followed it, calling them “policy-driven decisions masquerading as constitutional law.”

The opinion comes against the backdrop of President Donald Trump’s repeated calls to make it easier to sue for libel. On Tuesday, the high court rejected an appeal from actress Kathrine McKee, who said Cosby raped her in 1974. McKee sued Cosby for damaging her reputation after a lawyer for the comedian allegedly leaked a letter attacking McKee. Two lower courts ruled against her and dismissed the case, based largely on McKee’s role as a public figure.

The Sullivan case set a very high bar for public officials to win a libel suit and hefty money awards over published false statements that damaged their reputations. The high court extended the 1964 decision in the ensuing decades to make it tough for celebrities, politicians and other public figures to win defamation cases.

We discuss Justice Thomas’ opinion, as well as its likelihood of being taken up by the Supreme Court.

Guests:

Jane Kirtley, professor of media ethics and law at the School of Journalism and Mass Communication at the University of Minnesota

Josh Blackman, associate professor of law at South Texas College of Law Houston; he tweets @JoshMBlackman