There's been a blustering rash of hand-wringing in journalism and First Amendment circles over the recent concurrence to cert. denial by Justice Thomas in McKee v. Bill Cosby (SCOTUSblog). The case would have asked when a victim of sexual assault becomes a limited-purpose public figure after publicizing her allegation. Based on First Amendment doctrine dating to the 1960s, famously including New York Times Co. v. Sullivan (U.S. 1964) (Oyez), a limited-purpose public figure must prove actual malice to prevail in a defamation claim. That's very hard to do. The First Circuit affirmed dismissal in favor of Cosby.
"Actual malice"—ill named, as it does not have to do with anger or ill will, which is "common law malice"—is akin to the recklessness standard of tort law. In a defamation context, "actual malice" is said to mean "knowledge of falsity or reckless disregard as to truth or falsity." Supreme Court precedents late in the civil rights era amped up "reckless disregard" so much that for many years, actual malice seemed to be a nearly "fatal in fact" test.
Based only on casual observation, I posit that actual malice's rigor has been weakening in recent years. Courts have begun to recognize the need to fine tune the balance between reputational and speech rights. Meanwhile, "actual malice" has had a rough go in the world, even among our fellow human rights-loving western democracies. Actual malice has been largely rejected as a functional standard for its insufficient protection of reputation as a human right countervailing the freedom of expression. (My colleague Prof. Kyu Ho Youm paints a different picture. I deeply admire Prof. Youm, a dear friend, and his work, which I have assigned students to read. But I sharply disagree with his conclusion on this point.)
In his concurring opinion in McKee, Thomas challenged the constitutional imperative of the actual malice standard, which is so much higher than negligence and strict liability. His argument was not so narrow, however. Broadly, he proposed that the Court reconsider the fundamental premise that the the federal Constitution, through the First Amendment, should reshape state tort law, as the Court held it did in the civil rights-era cases. Thomas is a champion of textualism and originalism, and it must be admitted that the Court's First Amendment doctrine from the latter-20th century is on thin ice in those schools of constitutional interpretation.
This blog, any blog, is far from an adequate venue to tackle this question. I just want to do my part to raise consciousness of Thomas's proposition, and to dare to say, I agree. For many years now, I have harbored a deep suspicion of Sullivan and progeny. In my academic circles, especially in the free speech and civil liberties crowd, I have felt something like a church deacon harboring a dark secret. No longer; I confess:
Actual malice swung the pendulum way too far in favor of defendants. I get why, and I appreciate the good intentions. Sullivan arose against the tragic reality of the Jim Crow South and the potential national crisis precipitated by desegregation. But even Anthony Lewis, in his definitive book on Sullivan, Make No Law, recognized that the Court's federalization and constitutionalization of state defamation law had the ill effect of freezing the process of common law evolution. As a result, we have been deprived of the opportunity to experiment with fair and equitable policy alternatives, such as media corrections as a remedy.
I'm not arguing to "open up our libel laws," quite as President Trump proposed. But I'm with Justice Thomas. Sullivan is not holy writ.