When Gov. Ron DeSantis of Florida convened a round-table discussion about the news media this week, he spared no effort to play the part, perching at a faux anchor’s desk in front of a wall of video screens while firing questions to his guests like a seasoned cable TV host.
But the panel’s message was as notable as its slick presentation: Over the course of an hour, Mr. DeSantis and his guests laid out a detailed case for revisiting a landmark Supreme Court decision protecting the press from defamation lawsuits.
Mr. DeSantis is the latest figure, and among the most influential, to join a growing list of Republicans calling on the court to revisit the 1964 ruling, known as The New York Times Company v. Sullivan.
The decision set a higher bar for defamation lawsuits involving public figures, and for years it was viewed as sacrosanct. That standard has empowered journalists to investigate and criticize public figures without fear that an unintentional error will result in crippling financial penalties.
But emboldened by the Supreme Court’s recent willingness to overturn longstanding precedent, conservative lawyers, judges, legal scholars and politicians have been leading a charge to review the decision and either narrow it or overturn it entirely.
Mr. DeSantis, a likely Republican presidential candidate, put the effort at the center of his war against the mainstream media.
“How did it get to be this doctrine that has had really profound effects on society?” he said at the event, which featured two libel lawyers known for suing news organizations and a conservative scholar who recently published an essay titled “Overturn New York Times v. Sullivan.”
Under Sullivan, public figures who sue for defamation must show not only that a report contained false and damaging information, but also that its publisher acted with “actual malice” by knowing that the report was false or by recklessly disregarding the truth.
The precedent applies not only to mainstream media organizations, but also individuals, companies, partisan websites and podcasters that could face far greater exposure to defamation lawsuits if the standard of proof were lowered.
During the panel discussion on Tuesday, Mr. DeSantis accused the press of using Sullivan as a shield to intentionally “smear” politicians and said the precedent discouraged people from running for office. Would the current Supreme Court, he asked the panelists, be “receptive” to revisiting the case?
Donald J. Trump, who talked of changing libel laws as president, raised the same question in a court filing in December. The motion, part of a defamation lawsuit Mr. Trump filed against CNN, asked whether the high court “should reconsider whether Sullivan’s standard truly protects the democratic values embodied by the First Amendment.” His lawyers called the lawsuit, which accuses the network of unfairly comparing Mr. Trump to Adolf Hitler and seeks $475 million in damages, a “perfect vehicle” for revisiting the precedent.
CNN, which declined to comment, has denied the accusations and in November moved to dismiss the case. That motion is still pending.
A defamation lawsuit filed by Sarah Palin, the former governor of Alaska, against The New York Times, was once seen as a potential test of the “actual malice” standard first set by Sullivan. But a jury rejected her claim after a trial early last year, and a judge denied her bid for a second trial. The case is on appeal.
It’s not clear whether the court is ready to revisit Sullivan. Two justices on the conservative-majority Supreme Court, Clarence Thomas and Neil M. Gorsuch, have indicated their willingness to roll back the ruling in written dissents in recent years, but it would require two more votes for a challenge to even be heard.
Last June, the court declined to hear a defamation suit brought by a Christian organization against the Southern Poverty Law Center, which had called it a “hate group.” Justice Thomas dissented, writing that he “would grant certiorari in this case to revisit the ‘actual malice’ standard.”
Floyd Abrams, a First Amendment lawyer who represented The Times in the Pentagon Papers case in the early 1970s, said there was “a growing sense in the conservative community that this is their day to set aside New York Times v. Sullivan.”
Mr. Abrams and other legal experts point to the court’s recent decisions on abortion and gun rights as signs that it may be willing to revisit other longstanding precedents.
For Mr. Abrams, the attacks on what he considers “the gold standard in the world for the protection of the press” are thinly veiled attempts to shelter the country’s most powerful figures from the scrutiny that a healthy democracy requires.
“Essentially what they’re saying is that they want to crack down on American journalism,” he said.
Some of those pushing for a review of Sullivan argue that state legislatures, rather than the federal courts, should determine the scope and magnitude of libel law and press protections. Mr. DeSantis’s office last year drafted legislation that would have made it difficult, if not impossible, for journalists to use anonymous sources. (The bill was never filed to the Florida Legislature.)
Another complaint among critics is that subsequent rulings by the Supreme Court allowed Sullivan to expand beyond public officials to include a larger group of public figures that includes people cast unwillingly into the spotlight by news events.
“I believe the pendulum has swung too far for the average person who is wronged by false media reports,” said Harmeet Dhillon, a California lawyer who specializes in defamation cases and recently lost her bid for leader of the Republican National Committee.
Ms. Dhillon and others point to Nicholas Sandmann, who in 2019 found himself at the center of a national controversy after he was filmed facing a Native American elder at the Lincoln Memorial while wearing a MAGA hat. He sued multiple news outlets, including The New York Times, claiming they relied on the statements of the Native American elder without verifying them and subjected him to mass ridicule and derision. Mr. Sandmann reached settlements with CNN, The Washington Post and NBC. The lawsuit against The Times and other outlets was thrown out by a federal judge.
Mr. Sandmann, who has appealed the decision, appeared on Tuesday’s panel, which was staged in a studio outside Miami and streamed online. As Mr. DeSantis sat in front of screens reading “Speak the Truth,” Mr. Sandmann said his experience had “predetermined part of what the rest of my future is,” which is why, he said, “we need to look at defamation.”
Charlie Sykes wrote this three years ago:
Under the Supreme Court’s 1964 ruling in Times v. Sullivan, public officials must prove that a media outlet acted “with actual malice” in publishing false information. A unanimous court cited America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Mere errors would not suffice; litigants would have to prove that the media published information “with knowledge that it was false or with reckless disregard” for the truth.
Justice Hugo Black wrote a concurring opinion joined by Justice William O. Douglas that would have gone even further. “An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment,” he wrote. “I regret that the Court has stopped short of this holding indispensable to preserve our free press from destruction.”
Despite Black’s disappointment, that ruling has been one of the pillars of press freedom for more than half a century. Times makes it extraordinarily difficult for any public official or political actor to win damages in a court of law. And that, of course, has been a source of frustration for political actors for decades. …
All of this comes at a moment of particular vulnerability for the press, which has seen public trust erode along with its economic viability. Even though Times v. Sullivan is unlikely to be overturned in the foreseeable future, terms like “actual malice,” and “reckless disregard for truth,” are terms of art that rely on a legal and cultural consensus that is being ground down by relentless battering from partisan critics. …
Trump has denounced the current state of libel law – governed by Times v. Sullivan as “a sham and a disgrace,’ complained that it does not “represent American values or American fairness.” Throughout the 2016 campaign, Trump suggested that he wanted to “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”
He was clear how he might use such a right. “So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected,” he said.
Even since his election he has repeated his desire to scrap the media’s protection from libel suits. “We are going to take a strong look at our country’s libel laws, so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts,” he declared at one cabinet meeting.
As the Times noted:
Mr. Trump is no stranger to defamation claims, having filed several of them himself, without success. In 2009, a New Jersey judge dismissed a $5 billion suit brought by Mr. Trump against a biographer, Timothy L. O’Brien; Mr. Trump had claimed that Mr. O’Brien understated his personal wealth.
Back in 2016, Hulk Hogan (backed by billionaire Peter Thiel) won a libel lawsuit against Gawker that drove the publication out of business. That proved the power to sue is the power to destroy. But even threat of lawsuits can chill speech.
Experience suggests that it is naïve to thinking that gutting the libel laws will affect only statements of fact or would be used simply to target egregious errors. In an age of ideological and cultural hand-to-hand combat, the lines between fact, opinion, and analysis can quickly blur.
The Sandmann lawsuit illustrates the process. Yes, the media behaved badly in the coverage of the confrontation between students from Covington Catholic and protesters on the Mall. Mistakes were made, and reputations were unfairly maligned. But the $250 million suit does not merely target the errors of fact. As a writer in Vanity Fair notes:
Whatever its merits, the lawsuit itself reads like an overtly partisan political statement. [Sandmann’s lawyers] claim that the Post “wanted to advance its well-known and easily documented, biased agenda against President Donald J. Trump (“the President”) by impugning individuals perceived to be supporters of the President.” They also claim that the Post’s coverage of the Covington incident was part of a campaign “in furtherance of its political agenda . . . carried out by using its vast financial resources to enter the bully pulpit by publishing a series of false and defamatory print and online articles which effectively provided a worldwide megaphone to Phillips and other anti-Trump individuals and entities to smear a young boy who was in its view an acceptable casualty in their war against the President.” …
This will be immensely appealing to Trump’s conservative base. As Trump has learned, attacking the “fake news media” is the reddest of red meat and has the added advantage of feeding his own obsession with discrediting his critics. Having marinated in distaste for the media for years, conservatives will be tempted by the opportunity to strip the press of its legal protections.
But embracing the Trump/Thomas position would be a dangerous and ultimately self-defeating mistake. It would also be an ironic retreat on the issue of free speech. In recent years conservatives have embraced the First Amendment to push back against the stifling environment on some university campuses; and have adopted sweeping interpretations of its protection on free speech to invalidate a host of campaign finance laws.
In the very recent past, conservatives were appalled and outraged by suggestions that the federal government restore the Fairness Doctrine as a way of regulating and reining in conservative talk radio. They rightly saw the doctrine as restoring a form of “speech police,” who could be used to chill and harass the expression of unpopular (read conservative) opinion.
Pre-Trump, conservatives understood that their support for a free press was based on both principle and prudence. A weapon that can be used to shutter liberal media outlets can just as easily be turned against conservative activists, publications, and outlets.
Lawsuits are unlikely to put the New York Times or CNN out of business, but can the same be said of outlets like Breitbart, the Drudge Report, or the Daily Caller?
Billionaire litigants could make life miserable for Jim Acosta or Rachel Maddow; but billionaires on the left could also bankroll devastating legal attacks on talk radio hosts and right-leaning bloggers. The schadenfreude on both sides would be exceptional, but the price tag for democratic debate would be catastrophic.
So conservatives will once again face a choice in the Age of Trump, and this one may be distasteful for some, because they would be siding with the folks in the media they have been taught to loathe.
But this is the price of freedom and it is the genius of the Constitution that they claim to revere. By all means, conservatives should continue to criticize media malpractice when they see it; but they also need to reaffirm their support for “the principle that debate on public issues should be uninhibited, robust, and wide-open.” It was, after all, Ronald Reagan who declared:
There is no more essential ingredient than a free, strong and independent press to our continued success in what the Founding Fathers called our ‘experiment’ in self-government.
Republicans also lack enthusiasm for open government laws such as the state Open Meetings and Open Records laws. This is despite their use during the Scott Walker recall in which, thanks to the Open Records Law, the identity of those who signed petitions to have Walker recalled were public record, including numerous elected officials and government employees.
Sykes’ blithely casting aside a 17-year-old kid who did not meet anyone’s reasonable definition of “public figure” is ironic given that he asked on his podcast where Paul Pelosi, the husband of former Speaker of the House Nancy Pelosi, goes to get his reputation back after speculation on less responsible conservative media about what Pelosi was doing the night he was attacked. Guess which Supreme Court decision probably protects those media outlets from legal liability. (One also wonders how Sykes would react to being the target of less-than-responsible reporting, since as a national commentator he probably wouldn’t be successful suing a media outlet.)
The difference in the media world between 1964 and now is that there are many more conservative media outlets that are fully capable of holding up Democrats to scrutiny in the same way that Republicans have been held to scrutiny by the liberal-leaning mainstream media for decades.
You can’t have it both ways; you cannot say that the media should scrutinize Democrats but not Republicans. No one should want politicians of any or no party to be immune to criticism, which is the danger of overturning New York Times v. Sullivan.
Steve Prestegard.com: The Presteblog 