The Supreme Court on Tuesday rejected a case from convicted former energy CEO Don Blankenship, who had asked the high court to review libel standards for media outlets because it gives them a “license to publish defamatory falsehoods.”
Justice Clarence Thomas wrote in a three-page concurrence that he agreed with the court not taking up this case due to state law issues. But he added that he thinks the high court needs to revisit the actual-malice standard derived from its landmark 1964 ruling in New York Times Co. v. Sullivan.
In that case, the Supreme Court held that the press can be liable for defamation in an action involving a public figure only if the public figure can show the publication recklessly printed damaging information without regard to its truth or falsity. It’s a higher standard than for a nonpublic figure bringing a defamation claim.
“The Court cannot justify continuing to impose a rule of its own creation when it has not ‘even inquired whether the First or Fourteenth Amendment, as originally understood, encompasses an actual-malice standard,’” Justice Thomas wrote, signaling he’s ready to do away with New York Times Co. v. Sullivan to some extent.
The former CEO of Massey Energy Co., Mr. Blankenship had sued more than a dozen media companies for referring to him as a “convicted felon” during his 2018 campaign for a U.S. Senate seat in West Virginia.
In legal filings, Mr. Blankenship claimed his campaign for the Republican nomination was surging until news reports emerged that he was a “convicted felon.” He said those reports are inaccurate because he was never convicted of a felony.
Mr. Blankenship was convicted in December 2015 of a misdemeanor charge of conspiring to violate mine safety standards related to the 2010 explosion at the Upper Big Branch Mine that killed 29 coal miners. He was sentenced to one year in prison.
“New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and its progeny grant the press a license to publish defamatory falsehoods that misinform voters, manipulate elections, intensify polarization, and incite unrest. Election disinformation undermines our nation’s capacity for genuine self-government,” Mr. Blankenship stated in his petition, filed in May with the high court.
It would have taken four justices to vote in favor of hearing Mr. Blankenship’s case.
Justice Neil M. Gorsuch, like Justice Thomas, has signaled in the past that he is willing to revisit the 1964 precedent.
In 2021, Justices Thomas and Gorsuch said the standard for defamation with public officials set out in the 1964 precedent should be reconsidered as increasingly false reports have emerged and garnered attention.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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