The case is Mastandrea v. Snow, handed down yesterday; here's an excerpt from Judge Thomas's concurrence:
I concur because I am bound by the decision of New York Times v. Sullivan (1964).
But I agree with Justice Clarence Thomas, Justice Neil Gorsuch, Judge Lawrence Silberman, and others, that New York Times was wrongfully decided and was not grounded in the history or text of the First Amendment. Appellant and other public-figure defamation plaintiffs should not have to prove that the alleged defamation was made with the knowledge that it was false or with reckless disregard of the truth, as this is an "almost impossible" burden ….
New York Times has inflicted real injury on society:
Public figure or private, lies impose real harm. Take, for instance, the shooting at a pizza shop rumored to be "the home of a Satanic child sex abuse ring involving top Democrats such as Hillary Clinton." Or consider how online posts falsely labeling someone as "a thief, a fraudster, and a pedophile" can spark the need to set up a home-security system. Or think of those who have had job opportunities withdrawn over false accusations of racism or anti-Semitism. Or read about Kathrine McKee—surely this Court should not remove a woman's right to defend her reputation in court simply because she accuses a powerful man of rape.
The proliferation of falsehoods is, and always has been, a serious matter. Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires.
Berisha v. Lawson (Thomas, J., dissenting) (mem.) (emphasis added)….
And once a person's public reputation is destroyed, there is little opportunity for rehabilitation. It is a rare day indeed when a media outlet or a private actor publishes a front-page or lead story about how their false statements destroyed a person's reputation. And far too often, the defamed would-be plaintiffs do not have the financial resources to even attempt to overcome the "actual malice" standard created by the court in New York Times….
