Starting in 2019, Justice Clarence Thomas has repeatedly called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark First Amendment decision that made it hard for public officials to prevail in libel suits.
That project gained momentum in 2021, when Justice Neil M. Gorsuch said the decision “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
So it was notable that just five days before President Trump took office last month, the Supreme Court seemed to go out of its way to signal that it is not ready to embrace one of his most dearly held goals: to “open up our libel laws” and overrule the Sullivan decision.
The signal, faint but unmistakable, came in a routine case on whether sales representatives were entitled to overtime. Justice Brett M. Kavanaugh cited the Sullivan decision with seeming approval, noting that it had held that the Constitution insists that public officials suing for libel must prove their cases with clear and convincing evidence.
It was only an aside, one that Justice Kavanaugh used to help explain a distinction between the ordinary standard of proof that applies in most civil cases — a mere preponderance of the evidence — and the heightened standard required by the Sullivan decision. But justices do not typically invoke disfavored precedents to make general points.
The choice was particularly telling, as the demanding standard of proof in Sullivan fortified its already transformative requirement that public officials must prove that the publishers of false and defamatory statements about them had acted with “actual malice.”
(The term is confusing, as it has nothing to do with the ordinary meaning of malice in the sense of spite or ill will. Rather, it requires plaintiffs to prove that the defendant 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.)
The passage in last month’s decision went almost entirely unnoticed, but it helps explain an otherwise cryptic concurring opinion from Justice Gorsuch, joined by Justice Thomas. It said courts should apply the usual standard of proof “unless Congress alters it or the Constitution forbids it.” Justice Gorsuch added that the alternative would be to “choose sides in a policy debate rather than to declare the law as our judicial duty requires.”
The two justices did not mention Sullivan, but they did not have to. The discussion of a policy debate was an echo of Justice Thomas’s initial 2019 dissent. “New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote at the time.
The positive reference to the Sullivan decision last month was not a fluke. In 2023, Justice Elena Kagan, writing for five justices in a 7-to-2 decision, relied on Sullivan to rule that the First Amendment imposes limits on laws that make it a crime to issue threats on the internet.
Indeed, she analyzed the question using the Sullivan standard as a framework, to Justice Thomas’s dismay.
“It is thus unfortunate,” he wrote in dissent, “that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this court’s jurisprudence.”
All of this suggests that there remain only two votes to overturn the Sullivan decision, well short of the four it takes to add a case to the court’s docket, much less the five required to prevail on the merits.
Still, the attacks from Justices Thomas and Gorsuch have not gone unnoticed. Their dissents have been cited in 25 court decisions, according to a database search.
In a 2022 ruling, for instance, a Florida appeals court judge filed a concurring opinion saying he was bound to vote to dismiss a city councilman’s libel suit for lack of evidence of actual malice.
But the judge quoted at length from the two justices’ dissents and said he would overrule Sullivan if he could. The decision, he wrote, “was wrongfully decided and was not grounded in the history or text of the First Amendment.”
Since 2020, over a dozen litigants have asked the Supreme Court to overrule Sullivan. Last month, Steve Wynn, the casino magnate and Trump ally, asked the Supreme Court to hear his appeal of the dismissal of a libel suit against The Associated Press — and to overrule Sullivan in the process. “There comes a time,” his lawyers wrote, “when this court must correct its past mistakes.”
“None of this bodes well for Sullivan,” said Lee Epstein, a law professor and political scientist at the Washington University in St. Louis. “One data study demonstrates that criticism of precedent by lower courts and lawyers is a strong predictor of the court’s decision to depart from precedent.”
On the other hand, she said, the activity in the lower courts and on the Supreme Court’s docket may be explained as a reaction to the dissents.
“Signals from the justices that they’re interested in reconsidering a precedent,” Professor Epstein said, “likely prompt lawyers and judges to go on the attack.”
