Justice Thomas and the First Fake News Statute

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

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.

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.

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.

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.

Edward Longshanks
Richard II
James II wearing voluminous layers of clothing to protect his thin skin.

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.)

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 magnatumhad all the crudities of that savage era of monarchical autocracy in which it had its birth, still clinging to it.”

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.

John Adams — Not the poster child for free speech

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

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