Glenn Harlan Reynolds

Opinion columnist

Last week, the Supreme Court refused to hear a case involving a libel claim by one of the women who accused comedian Bill Cosby of rape. That’s not terribly surprising. Since the Supreme Court’s 1964 decision in New York Times v. Sullivan, justices have interpreted the First Amendment to make libel claims very difficult to bring.

If you’re a public official — later expanded to include all “public figures,” a class that includes football coaches and celebrities generally, and even people who publicly accuse comedians of rape — you can’t recover without showing that the libelous statement was made with “actual malice,” meaning with knowledge it was false, or with reckless disregard of its falsity.

Even nonpublic figures have to show actual malice to recover punitive or presumed damages. The result is that libel claims are very hard to bring. This is especially true after the Supreme Court’s 1968 decision in St. Amant v. Thompson holding that a plaintiff has to show that the defendant entertained serious doubts that what he was publishing was true. Mere failure to investigate isn’t enough.

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The court based these rules on the First Amendment’s protection of free speech and freedom of the press, arguing that the prospect of libel judgments would chill news media’s willingness to cover controversial issues.

But although the Supreme Court refused to hear the Cosby case, Justice Clarence Thomas argued that the court needs to undo New York Times v. Sullivan on the ground that it was a case of constitutional overreach. As Thomas wrote, “The constitutional libel rules adopted by this court in New York Times and its progeny broke sharply from the common law of libel, and there are sound reasons to question whether the First and 14th Amendments displaced this body of common law.”

As a writer, liberal laws have been good to me

Justice Thomas would have the court revisit the issue, and possibly overturn Sullivan, arguing that the “actual malice” standard has no support in the Constitution.

Not surprisingly, this was poorly received by the press. Columnist Will Bunch in the Philadelphia Inquirer wrote, “Thomas wants to crush the free press just like southern segregationists of the 1950s.” A column in the San Francisco Chronicle called it "Clarence Thomas vs. public’s right to know." And in the always temperate ThinkProgress, we were told that Thomas has declared war on the free press.

Well. Speaking as a blogger, columnist and occasional reporter, I have to say the Sullivan ruling has been very, very good to me. You have to work pretty hard to commit actionable libel under present law, and like everyone else in the business of writing and speaking and so on, I’m pretty happy with that legal regime. But this doesn’t mean Thomas is wrong.

As even liberal law professor Cass Sunstein commented: “Thomas is right to point out that the constitutional foundations of New York Times v. Sullivan are not entirely firm.” And it’s also true that the case’s original holding — in response to a coordinated plan by southern segregationist officials to use libel suits (brought in front of sympathetic local juries) to punish the national press for unfavorable coverage — has been expanded to cover all sorts of other cases, such as Cosby’s.

Like subsidies, someone pays for libel laws

It should be noted that limiting libel claims is essentially a subsidy for the chattering classes and the media. Like all subsidies, the costs come from someone else — in this case, someone whose reputation is ruined and who is left without a remedy. (And people who would perhaps not have been defamed at all if the news media worried more about libel exposure.)

I very much doubt that the Supreme Court will take up Thomas’ call to overturn New York Times v. Sullivan. But I would not be surprised to see it cut back on some of the more expansive follow-ups to that decision. The court has never given a convincing reason why “public figures" should be treated the same as “public officials.” And the St. Amant holding that there’s no duty to do due diligence if you don’t suspect anything is wrong is a likely place to start cutting back.

Like Sunstein, I think it’s time to start thinking about ways to discourage defamation a bit more, and to provide remedies for people who are harmed. And I would not be surprised to see the Supreme Court go at least a little way down that road.

Glenn Harlan Reynolds, a University of Tennessee law professor and the author of "The New School: How the Information Age Will Save American Education from Itself," is a member of USA TODAY's Board of Contributors.