Justice Thomas and the First Fake News Statute

In this Part, we challenge Thomas’ reliance on a set of dusty medieval English statutes.

Matthew Schafer


It took centuries before scandalum magnatum and libel cases were dealt with by the same courts and, in earnest, it would not be until the Star Chamber (pictured) was constituted in the sixteenth century.

This is the second installment in an ongoing multi-part series On Freedom Of Press In The United States; each installment can stand alone.

#1: The Attack on N.Y. Times v. Sullivan

#2: Justice Thomas and the First Fake News Statute

#3: A Republic, If You Can Keep It

#4: William Blackstone Is The Most Powerful Person You’ve Never Heard Of

#5: Originalism and a Constitutional Right to Your Opinions

#6: Actual Malice: The Bit That Justice Thomas Left Out

We now know that Justice Clarence Thomas wants to make it easier for public people to use defamation litigation to harass you, your local newspaper, and everyone else who criticizes them 😠. Thomas wants to take away the actual malice rule. That rule, implicit in the First Amendment, protects freedom of speech by requiring public officials to show that a critic acted with knowledge that their critique was false or with a high degree of awareness that it probably was before recovering defamation damages. Thomas says that the actual malice rule is a “policy-driven decision[] masquerading as constitutional law” without historical support.

In Part I, we drew up a battle plan for confronting this originalist attack on the actual malice rule: flanking Thomas’ interpretive approach, how he applies it, and the idea that history should matter at all in interpreting the First Amendment, while, at the same time, marshaling historical evidence to confront Thomas on his own terms.

Before we launch this attack, in this Part we’ll quickly take a look at how Thomas drew up his battle plan. To push the battle analogy to the breaking point: “If you know the enemy and know yourself, you need not fear the result of a hundred battles.” And, thereafter, in this Part and for the next several parts of this series (get your nerd on), we’ll turn our attention to rebutting Thomas’ historical support and challenging, where necessary, the bona fides of his interpretative method.

Thomas’ Four Attacks On New York Times…



Matthew Schafer

Media Lawyer. Adjunct Professor/Mass Media Law at Fordham University School of Law. Twitter @MatthewSchafer