“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
What's at stake in this case?
Far-right advocates and judges have targeted a key 1964 Supreme Court precedent that protects freedom of the press and freedom of speech under the First Amendment. Without this precedent, government officials would be able to suppress political opposition by regularly threatening to sue critics for defamation. Trump judge Andrew Oldham sharply criticized this precedent in the March case of Bryant v. Rosenberg.
What happened in this case?
In 2023, Sports Illustrated published an article highlighting evidence that former Mississippi Gov. Phil Bryant had been involved in a conspiracy to misuse state welfare funds for other purposes while he was in office. Bryant sued the article's author and the magazine owner for defamation.
Since Bryant is a public figure, the case is governed by the Supreme Court's 1964 ruling in New York Times v. Sullivan. This is the seminal First Amendment case protecting media and reporters from defamation suits from government officials they anger. It protects those who write about public figures by requiring a plaintiff to prove that the allegedly false statement was made with "actual malice." This means Bryant would have to prove that the magazine and reporter either knew the statements were false, or that they made the statements with "reckless disregard" as to whether they were true or false.
A trial court judge noted that while Bryant denied the allegations, he had acknowledged that the evidence against him "doesn't look good." He also acknowledged that people would look at the evidence and say "of course" he was involved in the misuse of funds. In part because of these acknowledgements, a trial court held that Bryant had failed to show actual malice and ordered his lawsuit dismissed.
A three-judge panel of the Fifth Circuit agreed and upheld the dismissal.
What did Judge Oldham say in concurrence?
Judge Oldham agreed that the case should be dismissed under Supreme Court precedent. But he wrote a condemnation of that precedent. He claimed that the Sullivan case had been wrongly decided and had led to "bad consequences."
Why is Oldham's concurrence harmful?
Oldham has been mentioned as a leading contender for a possible Supreme Court vacancy. As a justice, he would be an almost certain vote to overturn the Sullivan case. That would make it much easier for public figures like Donald Trump to use the threats of lawsuits to intimidate people from criticizing them. Indeed, even before he was elected in 2016, Trump revealed that he wanted to "open up" our nation's libel laws.
The case illustrates the importance of our federal courts to protecting our most basic freedoms.