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Supreme Court Associate Justice Clarence Thomas, at an event at the Library of Congress in February. Photo: Pablo Martinez/AP
Supreme Court Associate Justice Clarence Thomas, at an event at the Library of Congress in February. Photo: Pablo Martinez/AP

Why now Clarence Thomas?

The Supreme Court Justice’s recent questioning of a landmark decision regarding freedom of the press might have an ulterior motive.

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A month ago, Supreme Court Justice Clarence Thomas did something he’s rarely done in his 28 years on the nation’s highest court: he issued a public statement.

It came in response to the Supreme Court’s decision to deny a hearing for Katherine McKee, an accuser of Bill Cosby who told her story to the New York Daily News in Dec. 2014. Shortly after the story’s release, one of Cosby’s lawyers, Marty Singer, released a rebuttal to many of the claims made by McKee and threatened to sue the newspaper for defamation. However, his letter also divulged more about McKee and she filed her own defamation suit.

McKee lost and the Supreme Court refused to hear her case on the grounds of New York Times Co. v. Sullivan. This landmark case from 1964 held that for a public figure to win a libel case against a news outlet, they needed to prove “actual malice.” In other words, that the news outlet knowingly printed something false about the individual. It formed the bedrock for the freedom of the press and opened the door for investigative journalism during Watergate and subsequent political scandals involving public officials.

In the case of McKee, the court ruled her a public figure because she shared her story with the Daily News. She needed to prove “actual malice” from Singer in his letter, and could not.

In his 14-page statement, Thomas agreed with the court’s decision, but not because of New York Times Co. v. Sullivan. Instead, he questioned the ruling and asked for its review during a more applicable case. This is a peculiar stance by Thomas considering his place on the opposite side of the Me Too Movement from McKee.

Before Christine Blasey Ford, there was Anita Hill and before Brett Kavanaugh, there was Clarence Thomas. In 1991, towards the end of his appointment process, Hill accused Thomas of sexually harassing her while she worked under him at the Department of Education and Equal Employment Opportunity Commission. She testified in televised hearings in front of the Senate Judiciary Committee, but like Kavanaugh, Thomas was appointed after a long and emotional process.

With the Me Too movement picking up steam in the past few years, more and more women are getting the courage to come out about their past experiences. While Hill was the only named accuser of Thomas in 1991, there were others who corroborated her statements with experiences of their own but never spoke out. Now, they are.

One is Moira Smith, who in 2016 accused Thomas of assaulting her at a 1999 dinner party. Smith published her own story in The National Law Review, but is also featured alongside a slew of other women in Jill Abramson’s reexamination of Thomas’ case that calls for his impeachment. Abramson’s story appeared as the cover for the Feb. 19, 2018 edition of New York. Exactly one year later, Thomas would release his call to review New York Times Co. v. Sullivan.

Jay Michaelson, in his article about Thomas’ statement on The Daily Beast, speculates Thomas’ motivation for releasing a statement about New York Times Co. v. Sullivan.

“Suppose I were to speculate that Thomas has a specific interest in protecting the private lives of public figures because of his own very public debacle in 1991, when he was accused of sexual harassment by a former employee, Anita Hill,” wrote Michaelson.

Hill for one, is a star of the Me Too movement, and her association with it has pushed her voice beyond the political sphere. She grabbed global headlines during Brett Kavanaugh’s contentious appointment and it’s inspired more and more women to come out with their stories about Thomas to reaffirm Abramson’s argument for his impeachment.

Thomas will never escape the allegations that haunt his past, but if he gets his wish to revisit Sullivan v. New York Times Co., he’ll have a chance to do just that. While it’s just speculation at this point whether or not that chance will come, with a president that’s vowed to look at libel laws, action against the 1964 decision could be that opportunity. However, The New York Times cited both new Trump appointees to the Supreme Court as supportive of the decision.

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