In 2019, Justice Clarence Thomas called for re-evaluation of libel laws — “The New York Times (v Sullivan, 1964 decision) and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote in McKee v Cosby, 2019.
“The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” Thomas said. (Subsequently, revelations about corrupt gifts and loans to Thomas have weakened his position on the court to the point where many have called for his resignation. )
In 2023, the court declined cert. and refused to hear an appeal by a West Virginia coal mine executive who claimed he was libeled when a number of news organizations reported that he was convicted of a felony for conspiring to thwart safety regulations that led to the deaths of 29 coal miners. In fact, it was a misdemeanor conviction and the executive served 364 days in jail. Conservatives later said that the case was not the best vehicle for overturning Sullivan anyway
In response to proposed changes in libel law, many First Amendment defenders see the national standard in Sullivan as crucial. “Before Sullivan, some states allowed libel plaintiffs to triumph even if the allegedly defamatory statement was proved true, so long as it was published with hostility toward the plaintiffs,” wrote Mark Joseph Stern in a February 2019 Slate magazine piece.
An additional issue, as noted earlier, is that under state laws, libel suits were often used to silence civil rights advocates in the American South before the NY Times v Sullivan case of 1964. In one typical example from South Carolina, a Black editor — John Henry McCray — was charged with criminal libel and forced to serve two months on a chain gang in 1954 for simply reporting the last words of a death-row inmate.
By 2o25 there were plenty of signs that the Supreme Court probably would not overturn the Sullivan decision. The New York Times noted that on Jan. 15, 2025, the court signaled that it is not ready to embrace Trump’s goal to “open up our libel laws” and overrule the Sullivan decision.
The signal, faint but unmistakable, came in a routine case on whether sales representatives were entitled to overtime. Justice Brett M. Kavanaugh cited the Sullivan decision with seeming approval, noting that it had held that the Constitution insists that public officials suing for libel must prove their cases with clear and convincing evidence.
And in March, 2025, the court denied cert. to a case brought by a Las Vegas casino mogul who hoped to overturn Sullivan. And in April, 2025, former vice presidential candidate Sarah Palin lost a libel case against the New York Times. That case had once been seen as a potential vehicle for overturning Sullivan.