The reason I write about our history relevant to our freedom of speech might not be obvious to all. So maybe it should be. My method is informed by the method that U.S. Supreme Court (SCOTUS) justices have used repeatedly recently, including to deprive people of rights that many people thought were long since settled and secured by SCOTUS, itself.
Dobbs v. Jackson Women’s Health Organization is an excellent case in point. In Dobbs, I believe that the SCOTUS majority disregarded what they knew the Constitution required. The majority modified their methodology to reach the result they wanted. They focused on undermining their own precedent, and they purported to use our own history to do it. What they did in Dobbs reminded me a lot of others did in Dred Scott.
In Dobbs and Dred Scott, SCOTUS justices trotted out essentially only the parts of our history that they wanted us to see. Some among us might have no problem with robbing the particular victims in Dobbs and Dred Scott of their right to life, liberty and the pursuit of happiness. But what a handful of hand-picked SCOTUS justices can do to some, they can do to more. We all should care about restraining any gang with the power to rob us of our right to life, liberty and the pursuit of happiness.
Some of the same justices responsible for Dobbs already have shown that they want to use the tactics in Dobbs to demolish the SCOTUS precedent that has protected and preserved our freedom of speech for the past 60 years. They put a target directly on our freedom of speech, and for years they have been preparing to strike.
In 2019, Justice Thomas struck hard at our freedom of speech by emphatically expressing open hostility toward multiple protections emphasized in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). He openly pined for the good old days when the common law of libel (including seditious libel) made repressing criticism much easier. Justice Thomas (repeatedly) has taken the extremely extraordinary step of publishing an opinion in connection with the denial of a petition for certiorari.
He did so in McKee v. Cosby, 139 S. Ct. 675 (2019) to emphasize the following. The “rules adopted by this Court in New York Times and its progeny broke sharply from the common law of libel, and there [purportedly] are sound reasons to question whether the First and Fourteenth Amendments displaced this body of common law.” “Before our decision in New York Times, we consistently recognized that the First Amendment did not displace the common law of libel.”
“The common law of libel at the time the First and Fourteenth Amendments were ratified did not require public figures to satisfy any kind of heightened [proof] standard as a condition of recovering damages.” “Laws authorizing the criminal prosecution of libel were both widespread and well established at the time of the founding.” “And they remained so when the Fourteenth Amendment was adopted,” and “many States [merely] allowed truth or good motives to serve as [mere] defense to a libel prosecution.” (When people criticized people in power or people with power, judges or juries could punish or penalize the critics, and the powerful were not required to prove the criticism was false.)
“Far from increasing a public figure’s burden [of proof] in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels.” “Libel of a public official” (even when true) “was deemed [a criminal] offense” because it (somehow) was “most dangerous to the people, and deserv[ing of] punishment.” Although “[t]he common law did afford defendants a privilege to comment on public questions and matters of public interest,” such “privilege applied only when the facts stated were [proved by the critic to be] true.” (Critics of people in power or people with power were compelled to bear the burden of proving criticism was true. At least as significant, judges or juries could merely pretend to disbelieve the proof.)
In Berisha v. Lawson, 141 S. Ct. 2424 (2021), Justice Thomas was joined by Justice Gorsuch in attacking our freedom of speech. Justice Thomas misrepresented that the “pronouncement” in SCOTUS precedent “that the First Amendment requires public figures” (including candidates for public office) “to establish actual malice bears ‘no relation to the text, history, or structure of the Constitution.’ ” (Proving “actual malice” requires proof of facts that show, first, that the statement was false, and second, that the critic knew or should have known it was false.)
In Berisha, Justice Gorsuch leapt to follow Justice Thomas: before New York Times, “those exercising the freedom of the press” (regarding public officials and public figures) “had a responsibility to try to get the facts right—or, like anyone else, answer in tort for the [purported] injuries they [purportedly] caused.” “This was ‘[t]he accepted view’ in this Nation [by judges] for more than two centuries.” “Many Members of this Court have raised questions about various aspects of Sullivan.”
I write about the true history of the freedom of speech because I fear that too many of us are not preparing for what's coming. Too many sit back and say that New York Times and its progeny will protect us in perpetuity. Dobbs proved the danger in such repose. So I write to show (sometimes in little ways) that Justice Thomas was dead wrong and dangerously wrong about what he said and implied about our history and our liberty. I write to remind that the most accurate, complete and important writing about our freedom of speech (and about our Constitution) is not in SCOTUS opinions, and such freedom is not determined by, or even necessarily accurately stated by, people who hate and blatantly retaliate against critics and dissent: those who call themselves our judges.