This week President Trump posted on Truth Social, ”At some point I am going to sue some of these dishonest authors and book publishers, or even media in general, to find out whether or not these 'anonymous sources' even exist, which they largely do not.” I hope the New York Times is the first sued. It is time it pay for the perversion in constitutional law it was party to decades ago.
I don’t have any dishonest claim in mind for the President, but my sentiment and its target is based on a 1973 decision by the United States Supreme Court in New York Times v. Sullivan. In its opinion, the Court interpreted the freedom of speech and press clauses of the First Amendment wrong. The public has suffered from misinformation, even lies, from new outlets ever since.
To appreciate the egregiousness of the Court’s interpretation—which will follow—you need to know that something called common law provided the nomenclature upon which our founding fathers wrote the United States Constitution. It would inform how the First Amendment is interpreted.
You don’t need to know what common law is, only that it recognized the integrity of one’s reputation as the predicate to every sort of social opportunity. Famed commentator on the common law for the founding generation, William Blackstone summarized the point thusly:
The security of his reputation or good name from the arts of detraction and slander, are rights to which every man is entitled, by reason and natural justice; since without these it is impossible to have the perfect enjoyment of any other advantage or right. 1 William Blackstone, Commentaries on the Laws of England *134.
The individual’s specific security was suing the publisher and recovering any monetary damages, including punitive damages, caused by the defamatory publication.
Yet in the New York Times case, the Court announced an unprecedented interpretation of the common law rule and applied it through the First Amendment. It altered the ancient and fundamental common law right to vindicate one’s reputation.
The opinion declared that defamed public officials must prove not only the falsity of a reproach on their character, but that the publisher acted with an interior and elusive “‘actual malice’ —that is, with knowledge that it was false or with reckless disregard of whether it was false.” This interpretation, applicable to those in public office, was later extended to any “public figure.”
Now, because of New York Times, Christian organizations can be impugned by the Southern Poverty Law Center labeling them “hate groups.” Liberal media outlets often put this in their publications to the detriment of those ministries. This is the brief I filed with the Supreme Court on this point on behalf of Dr. D. James Kennedy and Coral Ridge Ministries.
In 2019, Supreme Court Justice Clarence Thomas wrote that the common law standard for defamation claims when both the First and Fourteenth Amendments were ratified “did not require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages.” McKee v. Cosby. In other words, they didn’t have to get into a publisher’s head and prove actual malice in order to recover.
He said the Court was engaged in “policy-driven decisions masquerading as constitutional law.”
The first consequence of making its decisions a matter of constitutional interpretation is it nationalized heretofore state-based common law defamation claims by public figures. In other words, it took away the authority of states to protect the reputation of public figures living within their borders.
Perhaps the worst consequence was highlighted by Supreme Court Justice Gorsuch in 2021. He observed that the Court’s interpretive innovation has “evolved into a subsidy for published falsehoods on a scale no one could have foreseen,” and “has come to leave far more people without redress than anyone could have predicted.” Berisha v. Lawson.
Sensational, even salacious, news about high profile people like Trump sells. It is time that one of them sue the racketeers of intentional misrepresentation to make honest reporters of them. A suit by Trump against the New York Times would get the media attention the Supreme Court’s malfeasance deserves.
I didn’t know this when I was still a state Senator or I would have done something about it. There are many “public figures” living in Tennessee who can be harmed by the Court’s venture into policy-making. The remedial plan is simple.
It begins with a legislature recognizing that the protection of a person’s reputation is a matter of domestic policy. That authority was left to the states by the Ninth and Tenth Amendments. Nothing in Fourteenth Amendment applicable to the states changed that.
With that as foundation, a state legislature should enact a statute expressly codifying the right of its residents to rely on the common law’s protection of their reputations and to use the common law’s standard of proof.
But, to make sure the U.S. Supreme Court gets the point, the statute should declare that it applies without regard to the New York Times decision. It would be a nice way to tell the Court it was wrong and improperly interfered in the the state’s exercise of its constitutionally authorized duties.
If the U.S. Supreme Court Justices think I’m spreading misinformation about them, I say, “Sue me.” I’m still a public figure entitled to protection by its New York Times decision.
