Distant Thunder On the Supreme Court

We are coming off one of the greatest weeks in the history of the U.S. Supreme Court. And yet, a largely unreported dissent by Justice Clarence Thomas may be the harbinger of something important that is still to come.

The case is Coral Ridge Ministries v. Southern Poverty Law Center, and the opinion by Justice Thomas, dissenting from a denial of a writ of certiorari, is the kind of thing that normally would disappear into the historical ether.

But this time, perhaps not. Start with the fact that Thomas is now the undisputed intellectual leader of the Court. Then take into account that many observers, including President Trump, have argued that our current standards for defamation cases have been tilted way too far in favor of defendants who libel or slander prominent people. Mix in the reality that the Southern Poverty Law Center is one of the great grifter organizations of our time, reeling in countless millions in donations–the SPLC has literally no idea what to do with the money it has raised, so it stashes it in offshore shelters–and making its living by contemptibly smearing conservative organizations.

Justice Thomas thought that the case by Coral Ridge Ministries against the SPLC should have been heard by the Court:

Coral Ridge Ministries Media, Inc., is a Christian non-profit dedicated to spreading the “Gospel of Jesus Christ” and “a biblically informed view of the world, using all available media.” 406 F. Supp. 3d 1258, 1268 (MD Ala. 2019) (internal quotation marks omitted). In 2017, Coral Ridge applied to receive donations through AmazonSmile, a program that allows Amazon customers to contribute to approved nonprofits. To its dismay, Coral Ridge learned it was ineligible for the program. The Southern Poverty Law Center (SPLC) had designated Coral Ridge an “Anti-LGBT hate group” because of its biblical views concerning human sexuality and marriage. Id., at 1270 (internal quotation marks omitted). AmazonSmile excluded Coral Ridge based on SPLC’s “hate group” designation.

This is a familiar story. Amazon has outsourced approval of nonprofits eligible to participate in its “Smile” program to the SPLC. The SPLC always approves left-wing groups, no matter how hateful they may be, but it considers many conservative groups to be “hateful” per se because it disagrees with them. Based on the SPLC’s political categories, Amazon obligingly supports liberal groups, but, often, not conservative ones.

Justice Thomas thinks that the SPLC should be required to defend the truth of its smears against Coral Ridge Ministries, which protests that, while it “opposes homosexual conduct” based on its religious beliefs, it is in no sense a “hate group.” … To the contrary, it “has nothing but love for people who engage in homosexual conduct” and “has never attacked or maligned anyone on the basis of engaging in homosexual conduct.”

The culprit here is twofold: 1) the requirement that to be actionable, a statement must be one of fact, not opinion; and 2) the “actual malice” standard–the standard that a public figure plaintiff must prove not only that the defendant (here, SPLC) was careless in libeling him or her, but rather that the defendant knew that what it said was false, or knew that it was likely false, and said it anyway. For obvious reasons, this subjective standard has proved impossible to meet in nearly all cases involving public figures.

Justice Thomas continued:

I would grant certiorari in this case to revisit the “actual malice” standard. This case is one of many showing how New York Times and its progeny have allowed media organizations and interest groups “to cast false aspersions on public figures with near impunity.” Tah, 991 F. 3d, at 254 (opinion of Silberman, J.). SPLC’s “hate group” designation lumped Coral Ridge’s Christian ministry with groups like the Ku Klux Klan and Neo-Nazis. It placed Coral Ridge on an interactive, online “Hate Map” and caused Coral Ridge concrete financial injury by excluding it from the AmazonSmile donation program. Nonetheless, unable to satisfy the “almost impossible” actual-malice standard this Court has imposed, Coral Ridge could not hold SPLC to account for what it maintains is a blatant falsehood. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 771 (1985) (White, J., concurring in judgment).

This is an issue that will return to the forefront many times in the years to come, until the Supreme Court adopts a reasonable standard to reconcile traditional libel law with the First Amendment.

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