SUPREME COURT OF THE UNITED STATES
No. 22–138
BILLY RAYMOND COUNTERMAN, PETITIONER v. COLORADO
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF COLORADO
[June 27, 2023]
Justice Thomas, dissenting.
I join Justice Barrett’s dissent in full. I write separately to address the majority’s surprising and misplaced reliance on New York Times Co. v. Sullivan, 376 U. S. 254 (1964). In New York Times, this Court held that the First Amendment bars public figures from recovering damages for defamation unless they can show that the statement at issue 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 280. Like the majority’s decision today, “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.” McKee v. Cosby, 586 U. S. ___, ___ (2019) (Thomas, J., concurring in denial of certiorari) (slip op., at 2). Instead of simply applying the First Amendment as it was understood at the time of the Founding, “the Court fashioned its own ‘ “federal rule[s]” ’ by balancing the ‘competing values at stake in defamation suits.’ ” Ibid. (quoting Gertz v. Robert Welch, Inc., 418 U. S. 323, 334, 348 (1974)); see also Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 501–502 (1984) (acknowledging that “the rule enunciated in the New York Times case” is “largely a judge-made rule of law,” the “content” of which is “given meaning through the evolutionary process of common-law adjudication”). “The constitutional libel rules adopted by this Court in New York Times and its progeny broke sharply from the common law of libel, and there are sound reasons to question whether the First and Fourteenth Amendments displaced this body of common law.” McKee, 586 U. S., at ___ (opinion of Thomas, J.) (slip op., at 6). Thus, as I have previously noted, “[w]e should reconsider our jurisprudence in this area.” Id., at ___ (slip op., at 14); see also Berisha v. Lawson, 594 U. S. ___ (2021) (Thomas, J., dissenting from denial of certiorari).
I am far from alone. Many Members of this Court have questioned the soundness of New York Times and its numerous extensions. See, e.g., Berisha, 594 U. S., at ___–___ (Gorsuch, J., dissenting from denial of certiorari) (slip op., at 5–8); Coughlin v. Westinghouse Broadcasting & Cable, Inc., 476 U. S. 1187 (1986) (Burger, C. J., joined by Rehnquist, J., dissenting from denial of certiorari); Gertz, 418 U. S., at 370 (White, J., dissenting); Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 62 (1971) (Harlan, J., dissenting); id., at 78 (Marshall, J., dissenting); Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (Stewart, J., concurring); see also E. Kagan, A Libel Story: Sullivan Then and Now, 18 L. & Soc. Inquiry 197, 207 (1993); J. Lewis & B. Ottley, New York Times v. Sullivan at 50, 64 DePaul L. Rev. 1, 35–36 (2014) (collecting statements from Justice Scalia); cf. Tah v. Global Witness Publishing, Inc., 991 F. 3d 231, 251–256 (CADC 2021) (Silberman, J., dissenting in part) (questioning the doctrine). It is thus unfortunate that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this Court’s jurisprudence.