Since my post of a few days ago I’ve read a lot of speculation about which precedents the court will destroy next. Most of the speculation is sound, but some should give one pause, if one believed that the right wing members of the court have even a shred of intellectual honesty. For instance, a blogger at Above the Law speculates that New York Times v. Sullivan may be overruled:
As for remaking First Amendment jurisprudence, well, the notoriously thin-skinned Donald Trump campaigned on the idea he would “open up” libel laws. And he isn’t a one off — no, both Justices Thomas and Gorsuch have invited the Court to revisit Sullivan. Do we really think Alito, Kavanaugh, and Barrett will hold the line here? Sure, some academics still have faith that the core of the actual malice standard will remain intact, but I’m not so certain.
The Sullivan case required that a plaintiff prove actual malice when asserting a libel case against the press.
It strikes me that if the “justices” decide to do this, they will have some heavy lifting to do when they have to explain why the new rule applies to the New York Times and MSNBC, but not to Fox, which by any reasonable measure would suffer the most from such a ruling. I suppose they could always go with the rationale of the lower court judge who ruled that Tucker Carlson could not be sued for libel because no reasonable person would ever believe anything he said, that rationale of course ignoring the fact that it’s the unreasonable people that we have to worry about. The whole thing might pain Roberts a bit, as he has this thing about the court’s reputation, but he’s not even the swing vote anymore, so he’ll have no choice but to go along.
The article at Above the Law is well worth reading. It also argues that Brown v. Board of Education may be on the chopping block. I wonder what Ginni will say to Clarence to get him to stay in step with the movement and vote to overturn Brown.
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