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Cass R. Sunstein

Clarence Thomas Has a Point About Free-Speech Law

The constitutional foundations of New York Times v. Sullivan are not looking all that firm.

He performed a public service.

He performed a public service.

Photographer: Susan Walsh-Pool/Getty Images

With his stunning plea for reconsideration of New York Times v. Sullivan – the landmark free-speech decision insulating the press, and speakers in general, from most libel actions – Justice Clarence Thomas has … performed a public service. Not necessarily because he’s right, but because there’s a serious issue here.

To see why, imagine that a lawyer, a blogger, a talk-show host or a newspaper lies about you -- and in the process destroys your reputation. Your accuser might say that you are a pedophile, a drug peddler, an arsonist or a prostitute. In an hour, the lie goes around the world.