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U.S. Justices Thomas, Gorsuch question libel protections for media

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Supreme Court

(Reuters) — The U.S. Supreme Court on Friday turned away a case challenging libel protections for journalists and media organizations, but conservative justices Clarence Thomas and Neil Gorsuch disagreed with the action and questioned such protections enshrined in a landmark 1964 ruling.

Citing a rapidly changing media environment increasingly rife with disinformation, Justices Thomas and Gorsuch said in separate opinions that the court should take a fresh look at its precedents that make it harder for public figures to sue for defamation.

The court declined to take up an appeal by Shkelzën Berisha, the son of a former Albanian prime minister, concerning his defamation lawsuit over corruption allegations against him made in a 2015 book by author Guy Lawson called “Arms and the Dudes.” The book was turned into the 2016 Hollywood film “War Dogs” starring Jonah Hill and Miles Teller.

A lower court ruled in favor of Mr. Lawson, the book's publisher Simon & Schuster and several other defendants because it determined Mr. Berisha was unable to show that allegations of his involvement in an arms-dealing scandal were made with “actual malice.” That standard, which protects against libel suits, involves statements made with knowledge that they were false or with reckless disregard of whether they were true or false.

The standard was established in the court's watershed 1964 ruling in New York Times v. Sullivan.

Justices Thomas and Gorsuch said the court should have taken the appeal. They said that in today's media environment, actual malice can protect lies instead of truth, with real-world consequences. Citing the false “Pizzagate” conspiracy theory that claimed that a Washington pizzeria was a front for a pedophile ring led by former Democratic presidential candidate Hillary Clinton, Justice Thomas said, “Public figure or private, lies impose real harm.”

Justice Thomas previously urged the court two years ago to reconsider its libel precedents when it refused to consider reviving a defamation lawsuit against actor Bill Cosby by a woman named Kathrine McKee who said the entertainer falsely called her a liar after she accused him of rape.

Justice Thomas on Friday mentioned Ms. McKee again, saying that “surely this court should not remove a woman's right to defend her reputation in court simply because she accuses a powerful man of rape.” Mr. Cosby was released from prison on Wednesday after Pennsylvania's highest court overturned his sexual assault conviction in a separate case.

Justice Gorsuch said justifications for the actual malice standard may be less in an era when technological changes and social media mean that disinformation can be better amplified and more profitable than traditional news with fact-checkers and editors.

“Not only has the doctrine evolved into a subsidy for published falsehoods on a scale no one could have foreseen, it has come to leave far more people without redress than anyone could have predicted,” Justice Gorsuch said.