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 v. Sullivan

Thomas’s ultimate thesis is this: “The constitutional libel rules adopted by th[e Supreme] Court in [Sullivan] and its progeny broke sharply from the common law of libel, and there are sound reasons to question whether the First and Fourteenth Amendments displaced this body of common law.” Thomas supports this theory with four largely distinct arguments.

First, Thomas argues that neither in 1791, when the States ratified the First Amendment, nor in 1868, when the States ratified the Fourteenth, did “the common law of libel . . . require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages.” According to Thomas, “Far from increasing a public figure’s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels.”

Second, Thomas contends that “the core private right of a person’s uninterrupted enjoyment of . . . his reputation formed the backdrop against which the First and Fourteenth Amendments were ratified” and was never viewed by the Court (prior to Sullivan) as colliding with these constitutional amendments. Before Sullivan, he said, the Supreme Court in cases like Chaplinsky v. New Hampshire and Near v. Minnesota confirmed as much by “consistently recogniz[ing] that the First Amendment did not displace the common law of libel.”

Third, Thomas writes that there “are sound reasons to question whether either the First or Fourteenth Amendment, as originally understood, encompasse[d] an actual-malice standard for public figures or otherwise displaces vast swaths of state defamation law.” As Thomas put it, there was “[s]cant, if any, evidence . . . that the First Amendment was intended to abolish the common law of libel.”

Fourth and finally, Thomas turns to Sullivan itself faulting the Court for what he viewed as too brief a historical survey. Sullivan, he said, “pointed only to opposition surrounding the Sedition Act of 1798, which prohibited “any false, scandalous and malicious writing” against “the government of the United States.” This, according to Thomas, was not enough.

In sum, Thomas argues, “there appears to be little historical evidence suggesting that the [Sullivan] actual-malice rule flows from the original understanding of the First or Fourteenth Amendment.” So, is he right?

The Curious Case Of The Ancient Footnote

We won’t address all of Thomas’ points in this Part— I don’t have that much faith in our attention spans. We won’t even address all of his first point here. But let’s begin with a one part of Thomas’ opinion that you might have missed: a footnote nestled on page eight. It might seem strange to begin with a footnote (who reads them anyway), but that footnote is going to prove important to Thomas’ argument and our challenge of it.

In this particular footnote, Thomas writes, “In England, ‘[w]ords spoken in derogation of a peer, a judge, or other great officer of the realm’ were called scandalum magnatum and were ‘held to be still more heinous.’” According to him, “such words could support a claim that ‘would not be actionable in the case of a common person.’” Scandalum magnatum, he says, was “recognized by English statutes dating back to 1275,” but “had fallen into disuse by the 19th century and was not employed in the United States.” No bother, he maintains, “the action of scandalum magnatum confirms that the law of defamation historically did not impose a heightened burden on public figures as plaintiffs.”

Here’s our counterpoint: The history of scandalum magnatum actually demonstrates the opposite. By the early eighteenth century if not sooner, history had abandoned scandalum magnatum and the idea that the law of harmful utterances should protect public officials more than any other individual. Scandalum magnatum was on the historical ash heap before the Founding, was not even the product of the common law at its inception, and was repudiated in the United States early on as un-American.

Moreover, as an interpretative matter, putting weight on the adoption of scandalum magnatum — some seven centuries ago — violates Thomas’ own originalist method as to what should matter when. As Thomas has maintained (albeit inconsistently), it is the originalist meaning as of 1791 when the States ratified the First Amendment not medieval England in 1275 that should be the starting point.

The Life & Death Of Scandalum Magnatum

Scandalum magnatum has a long history from its birth under Edward Longshanks a/k/a the Hammer of the Scots (not exactly known as a defender of freedom) to its eventual death in the late nineteenth century long after it had become obsolete. It is the product of three statutes — one adopted in 1275 (more than two hundred years before the arrival of the printing press in England), one in 1378, and one in 1388 — all adopted centuries before the Glorious Revolution.

The statutes were set down during the reigns of kings either attempting to consolidate their power (Edward I) or trying desperately, and ultimately unsuccessfully, to maintain it (Richard II). In this historical context, “all provocations by vilifying words were revenged by the sword,” which risked creating “factions . . . and endangered the Government itself.” Thus the original statute read, “None be so hardy to tell or publish any false news or tales, whereby discord, or occasion of discord or slander may grow between the King and his people, or the great men of the realm.”

Behold, the first fake news statute.

Under this and the later statutes, certain words that were otherwise not actionable as defamation at common law were subject to criminal prosecution (eventually in the Star Chamber, and eventually as a private cause of action too) if they were made against “prelates, dukes, earls, barons, and other nobles and great men of the realm.” (Scandalum magnatum did not, however, apply to “females, noble by birth” — so presumably Thomas’ reliance on scandalum magnatum would not apply to public people who bring libel actions and happen to be women 🤷🏼‍♂️.) In short, the statutes protected the Crown and its peers from criticism by doling out punishment on the Crown’s behalf, and “set the peerage apart from the rest of English society.”

While the statutes were meant to promote peaceful resolutions to disputes — as opposed to settling disputes through duels the old-fashioned way, they were barbaric nevertheless. Punishments under then ranged in their degree of maiming. Once Queen Elizabeth I, desiring that a critic be hanged, instead “had to be satisfied with having one of the man’s hands removed.” Others would lose their ears. So it goes, I guess?

Up to this point then, and setting to the side whether Thomas thinks we should reinstate originalist punishments too, Thomas is right this far: scandalum magnatum did create a divide between private figures, who could not invoke the protections of the statutes, and public people (or, at least, the peerage), who could. But there is, as they say, more to the story — which makes Thomas’ reliance on scandalum magnatum less than convincing.

Although the oldest of the statutes dates to 1275, they were rarely used early on. Despite the peerage’s desire to wield scandalum magnatum to protect their positions of power, “from the start the courts were determined to prevent the abuse of the law by peers.” Criminal prosecutions were not often pursued, and the first recorded civil action did not take place until 1497. But there was no rash of cases after that. Active enforcement of the statutes did not exist for nearly another hundred years beginning in 1580 to the Restoration in 1660 — and even then the number of reported cases was a mere eighteen.

True, after the Restoration, the peerage’s defensiveness in maintaining its privileges revived scandalum magnatum “as a reminder to their inferiors that the old order truly had been restored.” But the peerage was too bold in their use of scandalum magnatum, and the words on which they were based became more tenuous (e.g., that one earl could “kiss my ass” — a refreshingly modern insult). Courts began to recognize that the peerage used the “special protection they enjoyed from abusive language . . . [to] serve political as well as purely personal social ends.”

By the 1670s and 1680s, judges were becoming more and more annoyed with the number of cases. As England spun out of control politically from the exclusion crisis aimed at preventing the Catholic James, Duke of York, from taking the throne, so did actions under the statutes. In response, the House of Commons in 1680 attempted to repeal the statutes (although some say it is unclear if the motivation was in direct response to the statutes’ abuse). The Lords, however, rejected the attempt—not keen, apparently, on giving up their privileges.

To-be King James II was especially prolific in wielding the statutes to preserve his political power and his path to the throne. He was a regular Devin Nunes, filing no fewer than ten cases against his opponents for outlandish sums of money. Sir Francis Drake, the explorer and a defendant in one such case, thought it best to dispose “of his estate” and go by sea to another country, saying “it better to have his liberty in a foreign country than be laid up in his own for £100,000.”

And while these cases, along with others, were part of a spike in the abuse of the statutes between the Restoration and the Glorious Revolution in 1688, this did not indicate a growing public acceptance of the statutes. Rather, it reflected “the growing political disorders which England experienced in the last ten years of the reign of Charles II.” In other words: desperate attempts to cling to power. (Keep this in mind; we’ll come back to what weight Thomas thinks we should ascribe to English statutes during turbulent political times at the end of this Part.)

By the time James II ascended to the throne, the statutes were “used much less frequently.” Still, James II’s prior abuse of the statutes had coupled scandalum magnatum “to the Stuart cause.” And they “had become too closely identified with [James II] to survive his downfall [during the Glorious Revolution] unchallenged.” After James II was deposed by William of Orange (point, the Netherlands), the restructured political situation left little room for continued enforcement of scandalum magnatum and its class distinctions. The House of Commons sought to reverse judgments under the statutes. And, the courts were much less sympathetic to the peerage.

When King George I rose to the throne, “most peers were content to live without the protection of the statutes,” and the House of Lords offered to repeal scandalum magnatum. By 1703, “in the eyes of the law, a man’s . . . claim to knightly or noble status . . . was now less and less an acceptable criterion for determining whether he was entitled to damages.” According to one historian, while a “thin stream of cases can be traced through the eighteenth century,” the last recorded case was in 1773 — three years before the Revolution and almost twenty years before the First Amendment was ratified.

Although Parliament would not get around to repealing scandalum magnatum until 1887, it was, for all practical purposes, dead before the United States was formed. (Justice Thomas characterized scandalum magnatum as having “fallen into disuse by the 19th Century,” presumably to post-date the statutes death after the Founding; this is incorrect.) Fatal descriptors included: “now in a manner forgotten,” “by lapse of time . . . become unnecessary,” “obsolete,” “long been obsolete,” &c. As one scholar noted, “Though they survived until 1887, the statutes of scandalum magnatum belong essentially to that age which accepted ‘degree, priority and place’ (to use Shakespeare’s phrase) as the unquestionable stamp of God’s creation.”

In short, scandalum magnatum does not demonstrate the common law’s preference for protecting public officials; it demonstrates the inverse. The de facto death of scandalum magnatum by the time of the Founding, in both England and the United States, supports a finding that the law of harmful utterances developed away from treating public officials preferentially. Whether, of course, that means that it also supported making it more difficult for them to recover as compared to a commoner is a different question to be dealt with in another part of this series. (Spoiler: the law was 💯 fine with this.)

Scandalum Magnatum ≠ Common Law of Defamation

Even if its history supported his position, Thomas’ reliance on scandalum magnatum suffers from another embarrassing weakness: scandalum magnatum is not a product of the common law. Scandalum magnatum and the common law of defamation both dealt with harmful utterances but they were distinct doctrines. (Here, we speak in terms of the common law of defamation as opposed to that of libel, because scandalum magnatum is so old it predates the establishment of the common law of libel after the printing press arrived in England.)

To rely on scandalum magnatum as evidence of the state of the common law of defamation is like relying on the metric system in a country that only uses the imperial system. Sure they are both systems of measurements, but you’re liable to run into trouble if you treat them indistinguishably. What, then, was the difference between scandalum magnatum and the common law of defamation?

Scandalum magnatum was born of statutory law — not the common law. Basic legal training tells us that statutory law was that law laid down by Parliament, while the common law, including the law of defamation, was judge-made law. Moreover, scandalum magnatum was a criminal statute; it had nothing to do with civil causes of action for libel like those we think of today. The origins of scandalum magnatum and the common law then are fundamentally different.

Moreover, Scandalum magnatum proscribed not only speech harmful to an individual, like civil libel, but speech that was purportedly dangerous and thus subject to criminal punishment — albeit not dangerous enough to be treasonous. As one commentator explained, “[S]candalum magnatum occupied a middle ground in the range of legal action that could be taken for words: between the remedy available to the individual in church or local courts [for defamation] and the remedy available to the crown in actions of treason for words.” (See also here.)

Thus, there were substantive differences between the common law of defamation and scandalum magnatum. Initially, scandalum magnatum was narrower than the common law of defamation, as it applied only to the peerage and not to the gentry or commoners. It was also narrower in that it applied only to news that was false. Unlike the common law of defamation at the time, the charge (whether criminal or civil) actually had to be false — truth in scandalum magnatum was a defense. Further, the charge had to be news. The meaning of news was broad, but it did not include all utterances on any topic in any form.

On the other hand, scandalum magnatum was also broader than the common law of defamation insofar as the language on which such a charge was made did not have to be actionable at common law. Charges for scandalum magnatum were maintained for relatively mild criticism, e.g., that a particular earl was a “paltry” one; that a duke had “no more conscience than a dog.” As late as the seventeenth century, courts expressly recognized this difference between the causes of action — that a cause of action for libel may not be available but a cause of action for scandalum magnatum may nevertheless be, and vice versa.

In fact, scandalum magnatum and defamation were not even dealt with in the same courts in medieval England. Defamation, originally, “was classified as a spiritual offence” and “fell within the jurisdiction of the church courts.” Scandalum mangatum was considered in the “purely political context . . . punishable in the King’s courts,” and eventually the Star Chamber when it assumed jurisdiction of the same. It would not be until the last half of the sixteenth century — nearly three hundred years after the adoption of the first statute of scandalum magnatum — when the two distinct causes of action were dealt with in the same court.

In short, we have a bit of a case of apples and oranges when it comes to scandalum magnatum and the common law of defamation — or, if not apples and oranges, at least tangerines and oranges. Sure the causes of action seem similar; they shared, at bottom, the same conduct —harmful utterances— but beyond that, they were distinct in origin, substance, and the courts in which they were first pursued. To draw equivalencies between the two might be helpful descriptively, but it risks ignoring important differences.

Early State Courts Rejected Scandalum Magnatum

Another issue with scandalum magnatum: they were wholly foreign to the republican form of government created by the Founders. In that government, unlike that in which scandalum magnatum first became law, it was the People who were sovereign, not a king. Scandalum magnatum, after all, was adopted to protect the sovereign Crown from its subjects. It was meant to quash republican sentiment. Scandalum magnatum “had all the crudities of that savage era of monarchical autocracy in which it had its birth, still clinging to it.”

In the United States, however, the People were sovereign and titles of nobility forbidden altogether. Scandalum magnatum and, specifically, protecting the political class over other citizens, made no sense in this form of government. Politicians were agents of the People, and the republican government established by the Founders depended on the People being able to assess, criticize, and replace their agents in government. To enforce scandalum magnatum would destroy this kind of a government rather than protect it. As one commentator explained, the statutes’ “significance was in their anti-democratic tendencies.”

Unsurprisingly then, they were abandoned in early America. As one 1811 work noted, the “antient statutes . . . of scandalum magnatum” did not “extend[] to the province” of Maryland. And in Virginia, a leading commentator in the 1830’s wrote, “[T]his offense is not recognized by our laws.” As mentioned in Part I of this series, several early state courts showed open contempt for scandalum magnatum. The North Carolina Supreme Court, for example, left little doubt: “[I]n this day and country there is no such thing as ‘Scandalum Magnatum.’”

Consistent with this, even the treatises on which Thomas relies — Starkie and Newell — made clear that scandalum magnatum was repudiated in the States. As noted in Starkie, “In this country no distinction as to persons is recognized, and in practice, a person holding a high office is regarded as a target at whom any person may let fly his poisonous words.” A “[h]igh official,” he warned, “instead of afford[ed] immunity from slanderous and libelous charges, seems rather to be regarded as making his character free plunder for any one who desires to create a sensation by attacking it.” Newell was in agreement.

Later accounts are also in accord. Scandalum magnatum had no place on this side of the Atlantic. As one early twentieth century note in a law journal explained:

And in England as well as in this country this old rule [of scandalum magnatum] has now given place to the rule . . . that there can be no libel of the government or of government officials as such. It is therefore no greater offense to libel Theodore Roosevelt as president than it is to libel Theodore Roosevelt, the private citizen . . . . It is no greater wrong to falsely criticize the government than it is to speak evil of a private citizen. Anglo-Saxon barbarism affirmed the contrary and the old Tower of London witnessed the suffering of men who dared to raise their voices against the king.

So as to not fall victim to a Thomas-onian originalism, a few disclaimers of the above is worth outlining. Thomas’ best retort to all of this? Well, he could say that while scandalum magnatum was originally the product of statute, common law judges did build on the statutes’ original criminal law confines. They extended the statutes to civil cases. And, further, Lord Coke in the case of De Libellis Famosis, also argued for the creation a scandalum magnatum-type cause of action — libel of magistrates — that reached those officials not covered by the statutes. (It is more accurate to say that libel of magistrates was recognized based “partly upon . . . scandalum magnatum and partly on plain political expediency.”)

Still, scandalum magnatum’s relevance to the here-and-now, and those common law outgrowths of it, is not their adoption in medieval England or the seventeenth century in the Star Chamber. Rather, as discussed below, their importance is in their slow death as anti-republican doctrines in an increasingly republican world. Scandalum magnatum’s rejection by the time of the Founding must be more important to our understanding of the First Amendment than its adoption centuries earlier in feudal England, right?

The Originalist Problem With Scandalum Magnatum

The history of scandalum magnatum demonstrates that by the time of the Founding, there was broad agreement that the law relating to harmful speech should not favor persons of power over others. But that is just the history. The proposed battle plan requires us to attack Thomas’ interpretative method too. And, indeed, there are interpretative problems with his reliance on scandalum magnatum. Namely, reliance on the adoption of the scandalum magnatum to discern early American views on freedom of the press hundreds of years later makes no sense under Thomas’ approach.

We can use Thomas’ language from a recent Second Amendment case, to demonstrate that Thomas strayed from his own interpretative method in his reliance on scandalum magnatum. In fact, we can sub out the medieval open carry statute for scandalum magnatum seamlessly to prove our point.

“From the beginning, the scope of the [scandalum magnatum] was unclear.” And, “[w]hatever the initial breadth of the statute, it is clear that it was not strictly enforced in the ensuing centuries.” Moreover, “The religious and political turmoil in England during the 17th century thrust the scope of [scandalum magnatum] to the forefront.” “James II . . . sought to revive [scandalum magnatum] as a weapon to disarm his Protestant opponents.” And, his opponents were “ultimately acquitted.” In the end, “[Scandalum magnatum] remained in force following the codification of the English Bill of Rights,” but it fell into disuse.

As Thomas went on to explain (with some more cheeky tweaks on my end 😉), “In short, although England may have limited [the right of speech concerning public officials in] 14th century, by the time of the founding, the English right was [not so limited]. And for purposes of discerning the original meaning of the [First] Amendment, it is this founding era understanding that is most pertinent.” Applying this rule ☝ to libel, scandalum magnatum becomes entirely irrelevant save for one fact: it was dead letter by 1791. And, not only was it dead letter, it died specifically because the public and the law decided, over time, that it made no sense to treat public officials with white gloves.

Not to be deterred, casting aside his own method, Thomas simply focuses on the adoption of scandalum magnatum centuries before the Founding to the exclusion of its death by the Founding. Either the Founding era is most pertinent to an originalist understanding or fourteenth century England is. Thomas can’t have it both ways depending on whether it’s speech or guns.

There’s more too. Remarkably, Thomas purported to rely on scandalum magnatum to divine the original meaning of the First Amendment in 1791. Yet, he maintained that opposition to the Sedition Act, which outlawed criticism of the Adams Administration as of 1798, was irrelevant to that inquiry. In other words, he preferenced a hundreds-year-old statute over a then-contemporary one. As Thomas put it, “[C]onstitutional opposition to the Sedition Act — a federal law directly criminalizing criticism of the Government — does not necessarily support a constitutional actual-malice rule in all civil libel actions brought by public figures.”

But opposition to the Sedition Act, within a decade of the ratification of the First Amendment, is some of the best evidence of what the Founders meant when they spoke of freedom of the press and its relationship to the criticism of public officials — not some dusty statutory scheme from medieval England! As the Supreme Court correctly found in Sullivan, the opposition to the Sedition Act “first crystallized a national awareness of the central meaning of the First Amendment.”

Moreover, the Sedition Act does, indeed, dispel the notion that public officials should have special protection from harmful utterances even in the context of libel. The Act was, ostensibly, a modern day version of scandalum magnatum. It sought to punish and, therefore, muzzle citizens in their criticism of their governors.

On the floor of Congress, for example, Virginia Representative John Nicholas contested at length the constitutionality of the Sedition Act. Speaking of the law of libel of magistrates, that is, the law of libel relating to public officials or those in positions of power as recognized by Coke (one of those common law outgrowths of scandalum magnatum), he said to his fellow representatives, “At the Revolution, the State laws were either the law of England, or were built on it, and, of course, they would contain the monarchical doctrine respecting libels [of magistrates].” But he continued, “[T]o prove that the States have considered the law of libels consistent with the freedom of the press, gentlemen [who supported the Sedition Act] should show that this law has been practised on since the Revolution, and that the attention of the States had been called to it by its execution, and that it still remains in force.” Concluding, he said, “I believe this cannot be done. So far as I know, it has been a dead letter.”

Nicholas then did not consider the Sedition Act as just some other statute. He considered it to be contrary to the common law of libel as then developed with regard to public officials. And, he disavowed, as antithetical to the First Amendment, a state-sanctioned law that preferenced the ruling class, like that ancient law of England, finding it wholly undemocratic. Thus, contrary to Thomas’ attempt to dismiss the Sedition Act as unrelated to the common law of libel, accounts from the time show that they were seen as implicating the same interests.

Now, let’s not oversell the case. Nicholas goes on to argue on the floor that Congress — not the States — should get out of the business of futzing with free speech. That’s what the First Amendment says Congress cannot do, after all. As he puts it, “I think it inconsistent with the nature of our Government, that its administration should have power to restrain animadversions on public measures.” But, he added, “[F]or protection from private injury from defamation, the States are fully competent. It is to them our officers must look for protection of persons, estates, and every other personal right.”

“Aha!” Thomas exclaims from the wing, thinking that the historical record is turning in his favor. But not so fast. There’s a lot to unpack there too . . . but that’s a story for another part in this series.