- The Washington Times - Friday, July 2, 2021

Justices Clarence Thomas and Neil M. Gorsuch signaled Friday they are interested in reviewing defamation law, reasoning the media landscape has changed since the press was given protection against libel lawsuits more than 50 years ago.

The high court refused to hear a defamation lawsuit out of Florida in which one man sued another for how he was portrayed in the movie “War Dogs,” but the two conservative justices disagreed with rejecting the case.

Justice Thomas questioned the “actual malice” standard in New York Times v. Sullivan, in which the court ruled in 1964 that public figures had to prove that false statements about them were made with intent.

Under that precedent, public officials and figures have a higher burden to prove defamation, including showing that the defamer was fueled by “actual malice,” forcing public figures to prove a statement was made with the knowledge it wasn’t true or with a total disregard to its accuracy.

The standard has made it almost impossible for public figures to win libel cases.

Justice Thomas appears to favor a common law approach to claims that wouldn’t hold public figures to a higher standard of proof.

“Public figure or private, lies impose real harm,” he wrote.

Likewise, Justice Gorsuch said technology has changed the way media operates, so it may be time for the high court to revisit the law.

“Today virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world,” he wrote. “The bottom line? It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy.”

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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