Justice Clarence Thomas believes the Supreme Court should re-evaluate modern defamation and libel law, according to his concurring opinion released Tuesday. The justice was in agreement with the court’s decision to decline the review of a case brought by Bill Cosby accuser Kathrine McKee. McKee alleges she was defamed when Cosby’s attorney characterized her story of being raped as a fabricated lie. Thomas used the opportunity to criticize the 1964 Supreme Court decision in New York Times Co. v. Sullivan, the landmark case established that public figures have to prove actual malice when suing for libel or slander. Under that standard, public figures have to provide proof that the information published about them was known to be false, or that the publisher had disregard for the truth, an obstacle that Justice Thomas called an “almost impossible” standard. The “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law," Thomas wrote. He suggests that the malice standard should be removed—making it a lot easier for public figures to sue the media—a position President Trump has publicly embraced over criticism he has deemed to be unfair.
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