How far, under the First Amendment, can a liberal group go in making up lies about a conservative group? Two Supreme Court justices want to find out.

FNC: “Two Supreme Court justices have called for the court to revisit its landmark defamation ruling in New York Times v. Sullivan (1964). ‘This case is a perfect case to overturn the Times v. Sullivan standard,’ David Gibbs III, counsel for D. James Kennedy Ministries (DJKM), told press recently.

Critics say the Southern Poverty Law Center brands mainstream conservative and Christian organizations ‘hate groups,’ placing them on a list with truly hateful organizations like the Ku Klux Klan. The SPLC has branded DJKM an ‘anti-LGBT hate group’ due to its Bible-based statements on homosexuality, and Amazon uses the SPLC ‘hate group’ list to determine eligibility for its Amazon Smile charity program. In 2017, DJKM sued the SPLC and Amazon for defamation and discrimination.  Supreme Court Justices Clarence Thomas and Neil Gorsuch have called for the court to revisit that precedent and the ‘actual malice’ standard, specifically.”

Justice Thomas explained in an opinion last month, “public figures cannot establish libel without proving by clear and convincing evidence that the defendant acted with ‘actual malice’—that is with knowledge that the published material ‘was false or with reckless disregard of whether it was false…The proliferation of falsehoods is, and always has been, a serious matter. Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires.”

Justice Gorsuch noted that from early American history defamation law was “almost exclusively the business of state courts and legislatures…Now, private citizens can become ‘public figures’ on social media overnight,” Gorsuch noted. He explained that the “media ecosystem has fundamentally transformed since 1964: newspapers have failed, network news has lost most of its viewers, and 24-hour cable news and online media platforms that “monetize anything that garners clicks” have grown up in their places. In this environment, the actual-malice standard makes less sense”, he argued.

Gibbs, the DJKM lawyer, told media that his “case is the perfect case to overturn the actual-malice standard because you have a non-profit organization that is religiously doing their mission, they have done it consistently, they are being defamed in a most awful way. When you are an organization based on truth and love but you are called a hate group, that is per se defamation under Alabama law.”

Gibbs said the SPLC “is sitting on half a billion dollars” in its endowment. “When you have a small Christian ministry that is living offering to offering, getting bullied and subjected to these defamatory statements, I do believe that this case has some sympathy.”