A change to libel law could backfire on President Trump
At issue is an appropriate case to discuss during African-American History Month. L.B. Sullivan, an Alabama county commissioner, had sued The New York Times over an advertisement it published that sought funding for Martin Luther King Jr.'s civil rights campaign. Sullivan claimed to be defamed, even though the ad did not mention his name, because it described police abuses and an "unprecedented wave of terror." Alabama courts awarded him $500,000 in damages, a ruling unanimously reversed by the Supreme Court.
The justices set a higher standard for suing public officials, partly to protect the ability of the national press to cover the civil rights movement in the segregated South without crippling libel verdicts.
But Thomas says the court made a mistake in 1964 when it set a high barrier for public officials allegedly defamed by a story, a standard that later was expanded to include famous individuals and other, less-famous people who inject themselves into big news stories.
The ruling calls for public officials seeking damages to show the news publishers knew the report was false or otherwise displayed a "reckless disregard" for the truth.
But Thomas believes the states can set their own standards for libel without federal intrusion. The Sullivan case was wrongly decided, he said, describing it as "policy-driven decisions masquerading as constitutional law."
He may have a technical point in saying the court was legislating from the bench, not just "calling balls and strikes," as Chief Justice John Roberts has described the proper role of the high court.
But, as in the court's landmark 1954 Brown v. Board of Education school desegregation decision -- which Thomas, among other conservatives, also has criticized -- even if they had the wrong reasoning, the justices did the right thing.
The Sullivan ruling puts a lid on the ability of offended public officials to harass or intimidate legitimate news organizations or use frivolous lawsuits to publicize themselves or their own interests.
Besides, Trump in his rage may be forgetting that libel suits cut both ways. Imagine "Crooked Hillary" Clinton, "Lyin' Ted" Cruz and the multitude of other figures, public or otherwise, whom he has insulted with colorful slurs to the delight of his base.
This is the president whose false or misleading claims topped 5,000 in his first two years, according to a Washington Post tally -- and we, the voters, hardly even blink anymore when we hear that number.
Twitter-loving Trump is well familiar with the need to keep speech and the media as free as possible to express their views. Trump can dish criticism out. He needs to learn how to take it. That's the American way.
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(E-mail Clarence Page at cpage@chicagotribune.com.)
(c) 2019 CLARENCE PAGE DISTRIBUTED BY TRIBUNE MEDIA SERVICES, INC.
