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