Remember when the president* kept talking about "opening up the libel laws" so that people wouldn't be so free to point out that he's a delusional maniac with sawdust pouring out of both ears? Well, come on down, Associate Justice Clarence Thomas of the United States Supreme Court. Your order is ready. From The New York Times:



“I agree with the court’s decision not to take up” Ms. McKee’s case, Justice Thomas wrote. “I write to explain why, in an appropriate case, we should reconsider the precedents that require courts to ask it in the first place.” “We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” Justice Thomas wrote of the Sullivan decision, which placed constitutional limits on what had until then been state-law claims. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.”



Sullivan is one of the pre-eminent First Amendment cases of all time. It established "actual malice" as a pre-requisite for libel actions to proceed, and actual malice was a tough bar to clear.

To prove actual malice under the Sullivan decision, a libel plaintiff must show that the writer knew the disputed statement was false or had acted with “reckless disregard.” That second phrase is also a term of art. The Supreme Court has said that it requires proof that the writer entertained serious doubts about the truth of the statement.

Justice Thomas really is due to retire. Odds are that whoever replaces him will be worse. Nothing is impossible anymore.

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Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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