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Chronicles

The story behind the story

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Justices Gorsuch and Thomas call for review of a 1964 SCOTUS ruling that made it harder for public figures to claim libel, citing disinformation on social media

(CNN)Justices Clarence Thomas and Neil Gorsuch on Friday said the Supreme Court should revisit the breadth of the landmark …

CNN Ariane de Vogue

Context & Ripple Effects

This call does not come from nowhere: Justice Thomas has spent a year building a doctrinal case against platform-era speech protections, first arguing that Section 230's sweeping protection for platforms misreads the law, then that [[a:964904|social media platforms are sufficiently akin to common carriers and can be regulated like them]]. The new opinion extends that project to defamation itself, and the notable shift is that Gorsuch — not just Thomas — now signs on.

It matters because the 1964 ruling is the load-bearing wall of American libel law: it sets the bar public figures must clear to sue over false coverage. The justices' stated trigger is disinformation on social media, tying a 57-year-old press-freedom precedent directly to the platform-content debates already running through the Court's docket.

First-order effects

  • Public figures and officials who believe they were defamed gain a credible path to relief if the Court agrees to hear the question — today they largely cannot recover because the actual-malice bar is treated as nearly insurmountable.
  • News organizations and publishers face renewed legal exposure: any narrowing of the standard raises the cost of covering politicians and celebrities, and plaintiffs' lawyers gain an opening to test claims they currently decline.

Second-order effects

  • Platforms are pulled deeper into the same fight Thomas opened with his Section 230 and common-carrier arguments — defamation claims against speakers increasingly implicate the platforms hosting and amplifying the speech, so the libel review and the intermediary-liability review advance together.
  • Competing camps in the speech-policy fight must pick sides publicly: press-freedom groups and major outlets will defend the precedent, while officials and aggrieved parties fund challenges, reshaping which cases reach the Court's certiorari pipeline.

Third-order effects

  • If the pattern holds — Thomas's carrier argument, the Section 230 skepticism, and now a second justice on libel — the Court is positioned to systematically rebuild speech doctrine written for a pre-internet world, with outcomes that could either tighten accountability for false speech or chill legitimate reporting depending on where the new lines land.
  • A genuine reopening of the defamation standard would push the resolution of online-speech disputes further toward constitutional rulings rather than platform policy or legislation, making the Court the decisive venue for how disinformation is policed in America.

The trend: The Supreme Court's conservative wing is methodically targeting the legal architecture built around pre-social-media speech — Section 230, common-carrier treatment, and now the actual-malice libel standard — with disinformation as the through-line justification.

Discussion

  • @cohenss Sam Cohen on x
    I love how they use modern developments arguments when it suits and not, say, for modern developments in firearms https://twitter.com/...
  • @baldingsworld @baldingsworld on x
    I believe it would be deeply misguided to change the speech laws in the United States. It is more than ironic however that Journos who want to censor others are now concerned about maintaining free speech https://twitter.com/...
  • @pattmlatimes Patt Morrison on x
    Signals like this prove we are well past the genteel alarms about the country having taken “the first step toward undermining democracy.” https://twitter.com/...
  • @mjs_dc Mark Joseph Stern on x
    By a 6-3 vote, the Supreme Court refuses to hear Arlene's Flowers, which involves a florist who refused to serve same-sex couples. Thomas, Alito, and Gorsuch dissent. https://www.supremecourt.gov/ ... https://twitter.com/...
  • @theviewfromll2 Susan Simpson on x
    Sounds like Justice Thomas wants to make it possible for his conspiracy-theory-spreading wife to be held liable for defamation. https://twitter.com/...
  • @boutrousted Ted Boutrous on x
    This string cite from Justice Gorsuch omits the Supreme Court's unanimous 1988 decision in Hustler Magazine v. Falwell, authored by Chief Justice Rehnquist and joined by Justice Scalia, ringingly endorsing and expanding on New York Times v. Sullivan. https://twitter.com/...
  • @bobcesca_go Bob Cesca on x
    This is pornography for every Red Hat who's exploiting SLAPP suits to cancel liberals who are mean to them. You know, because Red Hats hate cancel culture and cherish free speech.🙄 https://twitter.com/...
  • @sababausa @sababausa on x
    Gorsuch's remarks are especially rich since the “original public meaning” of the First Amendment c.1789 was *incredibly speech restrictive* by today's standards, and Gorsuch voted yesterday to uphold a 1A right of billionaires to donate anonymously https://twitter.com/...
  • @philldkline Phillip Kline on x
    SCOTUS decision today supports Amistad's theory that Zuckerberg's millions spent to benefit Biden by violating equal protection and treating voters differently (disparate impact). We will press forward on our lawsuits!
  • @popehat SchemeToDefraudHat on x
    Two justices suggesting a second look at Sullivan goes from Thomas-is-a-weirdo to this-starts-to-be-concerning https://twitter.com/...
  • @ajitpai Ajit Pai on x
    Justice Gorsuch on NYT v. Sullivan: “It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy. Under the actual malice regime as it has evolved, ‘ignorance is bliss’” (later citing then-Prof. Kagan). https://www.supremecourt.…
  • @adamsteinbaugh Adam Steinbaugh on x
    If others join, this would gut the most important free speech protection in the United States: the right to get things wrong about the powerful. https://twitter.com/...
  • @markos Markos Moulitsas on x
    This would allow @HillaryClinton to bankrupt every single conservative that has profited from lies about her. Conservatives should tread carefully. https://twitter.com/...
  • @cathygellis Cathy Gellis on x
    This is frightening. But I note how similar it sounds to much of the anti-230 rhetoric. “Sure it made sense to protect expression THEN, but surely it's not necessary to keep protecting it NOW.” It NEVER stops being important to protect fundamental liberties. https://twitter.com/.…
  • @mmasnick Mike Masnick on x
    Well, this is only moderately terrifying. That's now two wealthy elite Supreme Court Justices indicating we should overturn decades of bedrock 1st Amendment precedent... to make it easier for wealthy elites to sue their critics. https://twitter.com/...