Justice Thomas and the First Fake News Statute
By: Matthew Schafer
Tags: History, Defamation, Clarence Thomas, Supreme Court

Early State Courts Rejected Scandalum Magnatum

Another issue with scandalum magnatum: they were wholly foreign to the republican form of government created by the Founders. In that government, unlike that in which scandalum magnatum first became law, it was the People who were sovereign, not a king. Scandalum magnatum, after all, was adopted to protect the sovereign Crown from its subjects. It was meant to quash republican sentiment. Scandalum magnatum “had all the crudities of that savage era of monarchical autocracy in which it had its birth, still clinging to it.”

In the United States, however, the People were sovereign and titles of nobility forbidden altogether. Scandalum magnatum and, specifically, protecting the political class over other citizens, made no sense in this form of government. Politicians were agents of the People, and the republican government established by the Founders depended on the People being able to assess, criticize, and replace their agents in government. To enforce scandalum magnatum would destroy this kind of a government rather than protect it. As one commentator explained, the statutes’ “significance was in their anti-democratic tendencies.”

Unsurprisingly then, they were abandoned in early America. As one 1811 work noted, the “antient statutes . . . of scandalum magnatum” did not “extend[] to the province” of Maryland. And in Virginia, a leading commentator in the 1830’s wrote, “[T]his offense is not recognized by our laws.” As mentioned in Part I of this series, several early state courts showed open contempt for scandalum magnatum. The North Carolina Supreme Court, for example, left little doubt: “[I]n this day and country there is no such thing as ‘Scandalum Magnatum.’”

Consistent with this, even the treatises on which Thomas relies — Starkie and Newell — made clear that scandalum magnatum was repudiated in the States. As noted in Starkie, “In this country no distinction as to persons is recognized, and in practice, a person holding a high office is regarded as a target at whom any person may let fly his poisonous words.” A “[h]igh official,” he warned, “instead of afford[ed] immunity from slanderous and libelous charges, seems rather to be regarded as making his character free plunder for any one who desires to create a sensation by attacking it.” Newell was in agreement.

Later accounts are also in accord. Scandalum magnatum had no place on this side of the Atlantic. As one early twentieth century note in a law journal explained:

And in England as well as in this country this old rule [of scandalum magnatum] has now given place to the rule . . . that there can be no libel of the government or of government officials as such. It is therefore no greater offense to libel Theodore Roosevelt as president than it is to libel Theodore Roosevelt, the private citizen . . . . It is no greater wrong to falsely criticize the government than it is to speak evil of a private citizen. Anglo-Saxon barbarism affirmed the contrary and the old Tower of London witnessed the suffering of men who dared to raise their voices against the king.

So as to not fall victim to a Thomas-onian originalism, a few disclaimers of the above is worth outlining. Thomas’ best retort to all of this? Well, he could say that while scandalum magnatum was originally the product of statute, common law judges did build on the statutes’ original criminal law confines. They extended the statutes to civil cases. And, further, Lord Coke in the case of De Libellis Famosis, also argued for the creation a scandalum magnatum-type cause of action — libel of magistrates — that reached those officials not covered by the statutes. (It is more accurate to say that libel of magistrates was recognized based “partly upon . . . scandalum magnatum and partly on plain political expediency.”)

Still, scandalum magnatum’s relevance to the here-and-now, and those common law outgrowths of it, is not their adoption in medieval England or the seventeenth century in the Star Chamber. Rather, as discussed below, their importance is in their slow death as anti-republican doctrines in an increasingly republican world. Scandalum magnatum’s rejection by the time of the Founding must be more important to our understanding of the First Amendment than its adoption centuries earlier in feudal England, right?

The Originalist Problem With Scandalum Magnatum

The history of scandalum magnatum demonstrates that by the time of the Founding, there was broad agreement that the law relating to harmful speech should not favor persons of power over others. But that is just the history. The proposed battle plan requires us to attack Thomas’ interpretative method too. And, indeed, there are interpretative problems with his reliance on scandalum magnatum. Namely, reliance on the adoption of the scandalum magnatum to discern early American views on freedom of the press hundreds of years later makes no sense under Thomas’ approach.

We can use Thomas’ language from a recent Second Amendment case, to demonstrate that Thomas strayed from his own interpretative method in his reliance on scandalum magnatum. In fact, we can sub out the medieval open carry statute for scandalum magnatum seamlessly to prove our point.

“From the beginning, the scope of the [scandalum magnatum] was unclear.” And, “[w]hatever the initial breadth of the statute, it is clear that it was not strictly enforced in the ensuing centuries.” Moreover, “The religious and political turmoil in England during the 17th century thrust the scope of [scandalum magnatum] to the forefront.” “James II . . . sought to revive [scandalum magnatum] as a weapon to disarm his Protestant opponents.” And, his opponents were “ultimately acquitted.” In the end, “[Scandalum magnatum] remained in force following the codification of the English Bill of Rights,” but it fell into disuse.

As Thomas went on to explain (with some more cheeky tweaks on my end 😉), “In short, although England may have limited [the right of speech concerning public officials in] 14th century, by the time of the founding, the English right was [not so limited]. And for purposes of discerning the original meaning of the [First] Amendment, it is this founding era understanding that is most pertinent.” Applying this rule ☝ to libel, scandalum magnatum becomes entirely irrelevant save for one fact: it was dead letter by 1791. And, not only was it dead letter, it died specifically because the public and the law decided, over time, that it made no sense to treat public officials with white gloves.

Not to be deterred, casting aside his own method, Thomas simply focuses on the adoption of scandalum magnatum centuries before the Founding to the exclusion of its death by the Founding. Either the Founding era is most pertinent to an originalist understanding or fourteenth century England is. Thomas can’t have it both ways depending on whether it’s speech or guns.

There’s more too. Remarkably, Thomas purported to rely on scandalum magnatum to divine the original meaning of the First Amendment in 1791. Yet, he maintained that opposition to the Sedition Act, which outlawed criticism of the Adams Administration as of 1798, was irrelevant to that inquiry. In other words, he preferenced a hundreds-year-old statute over a then-contemporary one. As Thomas put it, “[C]onstitutional opposition to the Sedition Act — a federal law directly criminalizing criticism of the Government — does not necessarily support a constitutional actual-malice rule in all civil libel actions brought by public figures.”

But opposition to the Sedition Act, within a decade of the ratification of the First Amendment, is some of the best evidence of what the Founders meant when they spoke of freedom of the press and its relationship to the criticism of public officials — not some dusty statutory scheme from medieval England! As the Supreme Court correctly found in Sullivan, the opposition to the Sedition Act “first crystallized a national awareness of the central meaning of the First Amendment.”

John Adams — Not the poster child for free speech

Moreover, the Sedition Act does, indeed, dispel the notion that public officials should have special protection from harmful utterances even in the context of libel. The Act was, ostensibly, a modern day version of scandalum magnatum. It sought to punish and, therefore, muzzle citizens in their criticism of their governors.

On the floor of Congress, for example, Virginia Representative John Nicholas contested at length the constitutionality of the Sedition Act. Speaking of the law of libel of magistrates, that is, the law of libel relating to public officials or those in positions of power as recognized by Coke (one of those common law outgrowths of scandalum magnatum), he said to his fellow representatives, “At the Revolution, the State laws were either the law of England, or were built on it, and, of course, they would contain the monarchical doctrine respecting libels [of magistrates].” But he continued, “[T]o prove that the States have considered the law of libels consistent with the freedom of the press, gentlemen [who supported the Sedition Act] should show that this law has been practised on since the Revolution, and that the attention of the States had been called to it by its execution, and that it still remains in force.” Concluding, he said, “I believe this cannot be done. So far as I know, it has been a dead letter.”

Nicholas then did not consider the Sedition Act as just some other statute. He considered it to be contrary to the common law of libel as then developed with regard to public officials. And, he disavowed, as antithetical to the First Amendment, a state-sanctioned law that preferenced the ruling class, like that ancient law of England, finding it wholly undemocratic. Thus, contrary to Thomas’ attempt to dismiss the Sedition Act as unrelated to the common law of libel, accounts from the time show that they were seen as implicating the same interests.

Now, let’s not oversell the case. Nicholas goes on to argue on the floor that Congress — not the States — should get out of the business of futzing with free speech. That’s what the First Amendment says Congress cannot do, after all. As he puts it, “I think it inconsistent with the nature of our Government, that its administration should have power to restrain animadversions on public measures.” But, he added, “[F]or protection from private injury from defamation, the States are fully competent. It is to them our officers must look for protection of persons, estates, and every other personal right.”

“Aha!” Thomas exclaims from the wing, thinking that the historical record is turning in his favor. But not so fast. There’s a lot to unpack there too . . . but that’s a story for another part in this series.