Blankenship v. NBCUniversal

1 Cite as: 601 U. S. ____ (2023)
T
HOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
DON BLANKENSHIP v. NBCUNIVERSAL, LLC, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22–1125. Decided October 10, 2023
The petition for a writ of certiorari is denied.
J
USTICE THOMAS, concurring in the denial of certiorari.
“The common law of libel at the time the First and Four-
teenth Amendments were ratified did not require public fig-
ures to satisfy any kind of heightened liability standard as
a condition of recovering damages.” McKee v. Cosby, 586
U. S. ___, ___ (2019) (T
HOMAS, J., concurring in denial of
certiorari) (slip op., at 6). To be sure, the law was not static;
“[i]n the first decades after the adoption of the Constitu-
tion,” the rule that “truth or good motives was no defense”
to libel “was changed by judicial decision, statute or consti-
tution in most States.” Beauharnais v. Illinois, 343 U. S.
250, 254 (1952). But from the founding until 1964, the law
of defamation was “almost exclusively the business of state
courts and legislatures.” Gertz v. Robert Welch, Inc., 418
U. S. 323, 369–370 (1974) (White, J., dissenting).
The Court usurped control over libel law and imposed its
own elevated standard in New York Times Co. v. Sullivan,
376 U. S. 254 (1964). It decreed that the Constitution re-
quired “a federal rule that prohibits a public official from
recovering damages for a defamatory falsehood relating to
his official conduct unless he proves that the statement was
made with ‘actual malice’—that is, with knowledge that it
was false or with reckless disregard of whether it was false
or not.” Id., at 279–280. The Court did not base this “actual
malice” rule in the original meaning of the First Amend-
ment. It limited its analysis of the historical record to a
loose inference from opposition surrounding the Sedition

2 BLANKENSHIP v. NBCUNIVERSAL
T
HOMAS, J., concurring
Act of 1798, see McKee, 586 U. S., at ___–___ (opinion of
T
HOMAS, J.) (slip op., at 12–13), and primarily justified its
constitutional rule by noting that 20th century state-court
decisions and “the consensus of scholarly opinion appar-
ently favor[ed] the rule,” New York Times, 376 U. S., at 280,
and n. 20.
I continue to adhere to my view that we should reconsider
the actual-malice standard. See Counterman v. Colorado,
600 U. S. 66, 105 (2023) (dissenting opinion); Coral Ridge
Ministries Media, Inc. v. Southern Poverty Law Center, 597
U. S. ___, ___ (2022) (same) (slip op., at 3); Berisha v. Law-
son, 594 U. S. ___, ___ (2021) (same) (slip op., at 3); McKee,
586 U. S., at ___ (opinion of T
HOMAS, J.) (slip op., at 14).
“New York Times and the Court’s decisions extending it
were policy-driven decisions masquerading as constitu-
tional law.” Id., at ___ (same) (slip op., at 2). The decisions
have “no relation to the text, history, or structure of the
Constitution.” Tah v. Global Witness Publishing, Inc., 991
F. 3d 231, 251 (CADC 2021) (Silberman, J., dissenting in
part). And the actual-malice standard comes at a heavy
cost, allowing media organizations and interest groups “to
cast false aspersions on public figures with near impunity.”
Id., at 254. The Court cannot justify continuing to impose
a rule of its own creation when it has not “even inquired
whether the First or Fourteenth Amendment, as originally
understood, encompasses an actual-malice standard.”
Coral Ridge Ministries, 597 U. S., at ___ (opinion of
T
HOMAS, J.) (internal quotation marks omitted) (slip op., at
3).
Petitioner Don Blankenship asks us to revisit New York
Times. I agree with the Court’s decision not to take up that
question in this case because it appears that Blankenship’s
claims are independently subject to an actual-malice stand-
ard as a matter of state law. See State ex rel. Suriano v.
Gaughan, 198 W. Va. 339, 356, 480 S. E. 2d 548, 565 (1996).
In an appropriate case, however, we should reconsider New

3 Cite as: 601 U. S. ____ (2023)
THOMAS, J., concurring
York Times and our other decisions displacing state defa-
mation law.