Clarence Thomas is right: SCOTUS should revisit libel law overreach

It should be noted that limiting libel claims is essentially a subsidy for the chattering classes and the media. Like all subsidies, the costs come from someone else — in this case, someone whose reputation is ruined and who is left without a remedy. (And people who would perhaps not have been defamed at all if the news media worried more about libel exposure.)

I very much doubt that the Supreme Court will take up Thomas’ call to overturn New York Times v. Sullivan. But I would not be surprised to see it cut back on some of the more expansive follow-ups to that decision. The court has never given a convincing reason why “public figures” should be treated the same as “public officials.” And the St. Amant holding that there’s no duty to do due diligence if you don’t suspect anything is wrong is a likely place to start cutting back.

Like Sunstein, I think it’s time to start thinking about ways to discourage defamation a bit more, and to provide remedies for people who are harmed. And I would not be surprised to see the Supreme Court go at least a little way down that road.

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