Charles Harder vs. Vice

Charles Harder
Attorney Charles Harder.
Eriq Gardner
June 27, 2022

The Supreme Court’s conservative majority has been on a precedent-smashing joyride these past few days—ending the right to abortion, curtailing Miranda rights, striking down restrictions on guns. Insiders expect a major ruling to limit the powers of the E.P.A., too. Meanwhile, Clarence Thomas has outlined the landmark decisions he’d like to see reversed next: the legal right to contraception, and gay marriage, even private sexual decisions between consenting adults. Now let’s add constitutional protections ensuring free speech to the list, too.

On Monday morning, the Supreme Court rejected a petition from Coral Ridge Ministries Media, a Christian broadcaster that sued the Southern Poverty Law Center after being labeled a “hate group.” Coral Ridge wanted the high court to tackle the question of whether, in defamation cases, “private public figures”—a lovely new oxymoron referring to famous people not working for the government—should have to prove “actual malice,” that is, knowledge of falsity or reckless disregard of the truth. Weakening the malice standard, of course, would also have lowered the legal barrier that currently protects media companies from being sued into oblivion. 

Although Coral Ridge’s petition was rejected, Thomas notably dissented, arguing that mediacos like The New York Times too often get away with publishing what Donald Trump might call fake news. It’s not the first time that Thomas has called for re-examination of New York Times v. Sullivan, the famous 1964 opinion that first established the actual malice standard to allow for “breathing space” in public debate. Back in 2019, Thomas signaled his frustration in reaction to a petition from Bill Cosby accuser Kathrine McKee—represented by the Gawker-slaying superlawyer Charles Harder—who wanted the Supreme Court to review what alleged sexual assault victims must show when pursuing defamation cases. Thomas, for his part, has argued that all libel standards should be returned to the states.