Don Blankenship was convicted of conspiracy related to a deadly mine explosion. He was sentenced to one year in prison, a day less than a felony sentence. He served his sentence in a prison where he was the only inmate in for a misdemeanor.

A rich man, Don ran for the U.S. Senate when he got out of prison. Numerous media, in error, reported he was a convicted felon. Blankenship sued the media for defamation claiming his reputation was irreparably damaged. The lower courts dismissed his suit on the basis of New York Times v. Sullivan.

Blankenship petitioned the Supreme Court of the United States to hear his case and toss or modify Sullivan, asserting that Sullivan, “grant[s] the press a license to publish defamatory falsehoods that misinform[s] voters … and incite[s] unrest.” Maybe, but the requirement for that license under Sullivan is strenuous.

Justice Clarence Thomas wrote last week in response to Blankenship’s petition that he wants to revisit Sullivan and seeks an “appropriate case” … to “reconsider New York Times and our other decisions displacing state defamation law.” He earlier called Sullivan flawed, looking to revoke the so-called media license. Justice Neil Gorsuch has also been critical of Sullivan and would like to see all, or much, of its media immunity peeled back.

The media’s license to criticize, even wrongly, a public official is a cornerstone of our form of government. The result of Thomas’ and Gorsuch’s plan would result in a media so chilled by the prospects of being sued for libel that it does not report news regarding a public figure unless it absolutely, positively is true.

Sullivan, however, allows the media leeway; it can err in its reporting of public figures or even in paid-political advertising it runs as long as the publisher acts without “actual malice” in a constitutional sense, meaning the media did not know the published content was false, or it did not act with reckless disregard of whether it was false.

Justice William Brennan, the author of Sullivan, wrote in 1964, that in a free debate of how the government should function, erroneous statements are inevitable. The media, he wrote, “… must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive.’”

It is not hard to imagine that Brennan saw a Clarence Thomas and Neil Gorsuch in the future when he penned: “Cases which impose liability for erroneous report of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors.”

In New York State Rifle & Pistol Association Inc. v. Bruen, Thomas, writing for the majority, abolished the balancing test. But Brennan, in 1964, wrote of the necessity of balancing the interests of the public against the interests of an individual, even when his reputation has suffered due to the press. In the end, Brennan wrote, the protection of the citizenry requires both discussion and information to feed that discussion.

No doubt the nature of the media has changed as has the speed at which it reports news. There are questions to be raised as to what constitutes the media. Is it a blogger in her PJs at the kitchen table, or is it the New York Times? However, given Thomas’ elimination of a balancing test in Bruen on the grounds that levels of constitutional scrutiny were not applied in 1791, it would not be a surprise should he, and others on that court, push harder when the right case presents itself to see strict liability imposed on the media for defamation of public figures.

His words in Blankenship were a call to challenge the media at lower levels and bring to the court an appropriate case to use as a vehicle to gut Sullivan.

James B. Astrachan is a partner at Goodell, DeVries, Leech & Dann, LLP and teaches trademark and unfair competition law at the University of Baltimore School of Law.

This article was originally published in The Daily Record.