Free Speech

Free Speech Supporters Shouldn't Cheer These Libel Suits Over Election Claims

Plus: Russia attacks near the Polish border, Texas must pause trans kid investigations, how environmental regulations hobble progress, and more...

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zumaamericastwentyseven785466 | Rafael Henrique/ZUMA Press/Newscom
(Rafael Henrique/ZUMA Press/Newscom)

"First Amendment scholars" cheer against a free press? A strange piece in The New York Times—headlined "First Amendment Scholars Want to See the Media Lose These Cases"—delves into defamation lawsuits filed against Fox News, One America News, Project Veritas, The Gateway Pundit, and other right-wing media outlets. The suits accuse these publications of intentionally spreading false claims about voter fraud in the 2020 election and profiting from these claims.

To win, plaintiffs have to show that these outlets acted with "actual malice"—that is, deliberately spread misinformation or acted with "reckless disregard" for facts.

"The high legal bar to prove defamation had become an increasingly sore subject well before the 2020 election, mainly but not exclusively among conservatives, prompting calls to reconsider the broad legal immunity that has shielded journalists since the landmark 1964 Supreme Court decision New York Times v. Sullivan," notes the Times.

Critics include politicians like former President Donald J. Trump and Sarah Palin, who lost a defamation suit against The Times last month and has asked for a new trial, as well as two Supreme Court justices, Clarence Thomas and Neil M. Gorsuch.

[First Amendment lawyer Lee] Levine said a finding of liability in the cases making their way through the courts could demonstrate that the bar set by the Sullivan case did what it was supposed to: make it possible to punish the intentional or extremely reckless dissemination of false information while protecting the press from lawsuits over inadvertent errors.

But finding that media outlets actually knew (or should have known) the election-fraud claims they aired were false is a tall order. When the president and some top Republican officials and lawyers were making such claims, is it really that off-base to think some in media might have truly believed them? Or at least found them worth reporting on credulously?

Even if you're cynical about, say, Fox News staff being true believers in election-fraud narratives, it's not outside the realm of possibility. And if the courts rule otherwise, that seems likely to weaken press protections across the board.

Remember, we're not just talking about specific claims made by individuals who appeared on news programs. We're talking about claims against the media outlets as a whole.

Fox's lawyers argue that "the public had a right to know, and Fox had a right to cover" election fraud claims and that the network reported on them in a neutral manner in its straight news segments. As for guests that gave these rumors credence on opinion programs, "giving them a forum to make even groundless claims is part and parcel of the 'uninhibited, robust and wide-open' debate on matters of public concern," the network's lawyers say.

That's true, whether you like the way Fox and other right-wing outlets covered Trump's election fraud claims or not.

Supporters of free speech should be very wary of letting the courts decide that reporting on or sharing opinions about widely disputed events is illegal unless it toes a certain line. Even if you can't spare much sympathy for some of the outlets now being sued, their losses could have ramifications far beyond these specific cases and outlets.

The Times reports that if Fox prevails, "the argument that the actual malice standard is too onerous and needs to be reconsidered could be bolstered." But if it loses, the standard would have lost its teeth anyway.

UKRAINE UPDATES

Russia's attack on a Ukrainian military base near the Polish border has ratcheted up the stakes in this conflict. The Sunday assault comes a day after Russian officials said that western weapons aid was a legitimate target.

"A large portion of the military aid from the West—one of the largest transfers of arms in history—passes through Poland into western Ukraine, part of the fine line the U.S. and its North Atlantic Treaty Organization, or NATO, allies are walking between aiding Ukraine militarily while steering clear of providing troops or enforcing a no-fly zone that Ukraine has called for," reports The Wall Street Journal. "The expansion of Russia's aggression to a target close to Poland also increases the risk of the war encroaching on NATO territory, which the U.S. has warned would be treated as an attack on the alliance."

National Security Advisor Jake Sullivan told Face the Nation yesterday that a Russian attack in Poland would summon "the full force of the NATO alliance to bear in responding to it."

FREE MINDS

Texas must stop investigating families of transgender kids. After ruling that Texas must halt investigating a particular family for providing medical treatments to a transgender child, a state judge has now held that government officials must pause all such investigations. The Texas Tribune reports:

The statewide injunction from District Judge Amy Clark Meachum will remain in effect until "this court, and potentially the Court of Appeals, and the Supreme Court of Texas" hear the case, she said.

Meachum said there is a "substantial likelihood" that lawyers for the American Civil Liberties Union and Lambda Legal will prevail in getting Gov. Greg Abbott's directive for such investigations permanently overturned, calling his actions "beyond the scope of his duty and unconstitutional."

FREE MARKETS

Excessive regulations hobble progress. The University of California, Berkeley, may have to cut down on the number of students it can teach in person after a court sided with area residents who say they're concerned about the environmental impact of students. "This kind of NIMBYISM is noxious," writes Ezra Klein in a new column. "The way to ease homelessness in Berkeley is to build more homes for everyone, not keep out a bunch of kids looking to better their lives."

The case reveals the flaws in a 1970 California law "that demands rigorous environmental impact reviews for public projects, and that has become an all-purpose weapon for anyone who wants to stymie a new public project or one that requires public approval," notes Klein. And laws like this aren't isolated to California—nor to public projects. For instance, the permitting process to convert a home from gas to electric power in Santa Barbara can take a year.

Klein draws some of the wrong conclusions from all this, turning the story around into an attack on people who want to see government restrained. But he correctly diagnoses the way excessive regulations—and an environmental movement "organized around saying no" (as the political scientist Leah Stokes put it)—can hobble public and private investments in the future.

QUICK HITS

• An American journalist, Brent Renaud, has been killed in Ukraine.

• A Texas Supreme Court decision thwarts challenges to the state's six-week abortion ban.

• Politician and activist Ammon Bundy has been arrested for trespassing after refusing to leave a hospital where a friend's grandson was being held and treated for malnourishment per an order from the state's Child Protective Services (CPS). Bundy said the baby was "medically kidnapped because a medical practitioner called CPS for a missed doctor appointment" and linked to a page where the baby's grandfather challenges the government's characterization of the situation.

• A former prison in California is now a cannabis farm.

• Why Florida is ground zero for culture war.