Justice Thomas' Solution for Fake News and Other Libels

The result is Republican Senator Josh Hawley’s bill to amend Section 230 of the Communications Decency Act that currently protects tech platforms like Google from liability. The bill would not allow such media to “promote some political views while suppressing others” and requires reporting to the Federal Trade Commission every two years to demonstrate by “clear and convincing evidence” that they do not do so.

As former conservative Congressman and Section 230 author Chris Cox responded, Hawley’s bill does not define what “political neutrality” is but defaults its definition to the First Amendment, which means the Federal courts will decide, the very institutions that have protected the media from government oversight, presumably including the FTC.

Cox defends the liability exclusion as allowing social media to exclude morally objectionable material. He cites the recent Supreme Court that imposing First Amendment standards on nongovernmental platforms would force private entities into an “unappetizing choice of allowing all comers” or losing control of their business and perhaps “closing the platform altogether.”

In other words, the courts would still give social media carte blanche by endorsing the number one cause of America’s great discontent, the permission of media to make any libel their arrogance desires knowing no one can do anything about it.

More important, the bill relies on the government to save us. Have conservatives come that far? The solution is not more government but less, less FTC bureaucrats and more real law.

One conservative gets it right, indeed almost all the time, Justice Clarence Thomas, who goes to the root of the problem, the courts.

Justice Thomas’ wisdom comes in a concurring opinion in McKee v Cosby dismissing defamation claimed by one of Bill Cosby’s accusers but arguing that the case proved that the Supreme Court New York Times v Sullivan criteria as properly interpreted by the lower court was “almost impossible” to satisfy, requiring even “a limited purpose public figure” like the defamed woman to prove “actual malice” by the defaming lawyer with clear and convincing evidence that the statement was false and made with reckless disregard for whether it was false or not.

Even the liberal Cass R. Sunstein agreed that Thomas had a point in recommending a review of Sullivan. The common justification is “that speakers need 'breathing space,'” where the prospect of libel actions could have a “chilling effect” on freedom of speech, especially about public figures like politicians when “democracy itself requires what the Supreme Court called an 'uninhibited, robust, and wide-open'” system of free expression, in which speakers and writers are not deterred by the fear of lawsuits.

He responds, “Fair enough. But some kind of chilling effect is not the worst idea” if that effect “reduces the risk that falsehoods will destroy people’s reputations.” Why should a Sullivan free-speech principle prohibit states from allowing someone accused of lying about being raped to at least demand a retraction and some level of compensation?

Justice Thomas was more blunt: “If the Constitution does not require public figures to satisfy an ‘actual-malice’ standard in state-law defamation suits then neither should we.” It was all “largely a judge-made rule of law” anyway, “policy-driven decisions masquerading as constitutional law.”

He referenced the early Justice Joseph Story, “The liberty of speech, or of the press, has nothing to do with this [defamation] subject. They are not endangered by the punishment of libelous publications. The liberty of speech and the liberty of the press do not authorize malicious and injurious defamation.”

Thomas concluded, “We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”

The Justice reminds us that common law protections like those against defamation were the backdrop against which the Constitution and First and Fourteenth Amendments were adopted. Lorain County Ohio recently demonstrated how Constitutional federalism is supposed to work. It awarded $44 million to a bakery that apprehended a minority student from nearby Oberlin College in the midst of shoplifting after which the school supported the aggressor by defaming the owner and publically cancelling all business with him.

Elite media, lawyers, and educators defame at will because the Sullivan decision will protect their arrogance, period. To look to the FTC is delusional. As difficult as it will be, only limiting the scope of “actual malice” will have any effect.

Justice Thomas is right. The way to limit big-media abuse is common law which has solutions aplenty, relying upon local juries of one’s peers rather than on national bureaucrats.

Donald Devine is senior scholar at the Fund for American Studies. He is the author of "America’s Way Back: Reclaiming Freedom, Tradition, and Constitution" and "Reagan’s Terrible Swift Sword: Reforming and Controlling the Federal Bureaucracy." He served as President Reagan’s director of the U.S. Office of Personnel Management. He can also be followed on Twitter @donalddevineco1. For more of his reports, Go Here Now.