Conservatives Who Want To Weaken Defamation Standards May Regret Opening That Can of Worms
Contrary to the Supreme Court's First Amendment precedents, Donald Trump thinks harsh criticism of the president should be actionable.
Last October, former President Donald Trump sued CNN (again) for defamation. Among other things, Trump argues that the news channel defamed him by describing his claim that Joe Biden stole the 2020 presidential election as "the 'Big Lie,' a concept tied to Adolf Hitler." Trump thinks his lawsuit is the "perfect vehicle" for reconsidering Supreme Court precedents that make it difficult for public figures to win compensation for injury to their reputations.
Fox News, meanwhile, is counting on those precedents to protect it from liability for promoting the "Big Lie," which implicated Dominion Voting Systems in a "massive fraud" that supposedly denied Trump a second term. Fox argues that Dominion cannot meet the "actual malice" test that the Supreme Court established in the 1964 case New York Times v. Sullivan, which requires proof that Fox either knowingly or recklessly aired false allegations against the company.
As that contrast vividly illustrates, the standard established by Sullivan and extended by subsequent cases cuts both ways even as applied to a very specific category of speech. It is an obstacle for Dominion, which objected to Fox's amplification of Trump's claim that the company helped Biden steal the election, and it is an obstacle for Trump, who objected to CNN's characterization of that claim.
To put it another way, Fox News and CNN both have reason to be thankful for the protection provided by Sullivan and its progeny, which applies regardless of which way a news source leans. Revisiting those precedents therefore poses a threat to speakers across the political spectrum. It is a can of worms that conservatives may regret opening.
Sullivan involved a full-page New York Times ad titled "Heed Their Rising Voices" that condemned "an unprecedented wave of terror" against civil rights activists in the South. That "wave of terror," it said, included conduct by police, school officials, and private actors such as the would-be assassins who had bombed Martin Luther King Jr.'s home in Montgomery, Alabama. "Again and again," the ad complained, "the Southern violators have answered Dr. King's peaceful protests with intimidation and violence."
While the gist of that complaint was undoubtedly valid, the ad included several inaccuracies and exaggerations. Montgomery Police Commissioner L.B. Sullivan, who was not mentioned in the ad but argued that he had been impugned by implication, sued the signatories and the Times for defamation and won a damage award of $500,000 (about $4.8 million in current dollars), a verdict that was upheld by the Alabama Supreme Court. The U.S. Supreme Court unanimously overturned that judgment, concluding that Alabama's defamation rules were inconsistent with the First and 14th amendments.
The majority held that the First Amendment requires "a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'— that is, with knowledge that it was false or with reckless disregard of whether it was false or not." That rule was necessary, the Court said, to protect freedom of speech and the press from the "chilling effect" of a less demanding standard.
"Debate on public issues should be uninhibited, robust, and wide-open," the Court said, and "it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." It may also include errors. "Erroneous statement is inevitable in free debate," the majority said, and "it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need…to survive.'" When people criticize government officials, the justices said, "a defense for erroneous statements honestly made" is "essential."
Three concurring justices thought that defense did not go far enough. As Justice Hugo Black saw it, the First and 14th amendments "completely prohibit" a state from awarding damages to "public officials against critics of their official conduct." Justice Arthur Goldberg agreed that "the Constitution affords greater protection than that provided by the Court's standard to citizen and press in exercising the right of public criticism." Justice William O. Douglas joined both of those concurring opinions.
The Court later extended the actual malice standard to defamation cases involving "public figures," including people who "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." It also said a plaintiff must show that the defendant "entertained serious doubts" about the truth of his statement.
Trump, a promiscuous plaintiff, does not like the implications of these decisions. While running for president in 2016, he famously promised to "open up those libel laws" so that aggrieved public figures like him could sue irksome critics and "win money instead of having no chance." After Trump took office, he downgraded his vow to a suggestion, possibly because someone informed him that presidents have no power to change the state laws and judicial precedents that govern defamation claims. It might be time, he tweeted, to "change libel laws" in light of his perception that journalists had "gotten me wrong."
Another Republican politician, Florida Gov. Ron DeSantis, is more specific about the changes he'd like to see. As Reason's Emma Camp noted last month, DeSantis supports a Florida bill that would "narrow the definition of a public figure by excluding persons whose notoriety arises solely from 'defending himself or herself publicly against an accusation,' giving an interview on a subject, public employment (other than elected or appointed office), or 'a video, an image, or a statement uploaded on the Internet that has reached a broad audience.'"
Even in cases involving a government official, the bill says, the actual malice standard does not apply "when the allegation does not relate to the reason for his or her public status." It adds that "an allegation that the plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity constitutes defamation per se." When journalists use anonymous sources, the bill says, the information is "presumptively false" and "plaintiffs need only prove that the defendant acted negligently," rather than recklessly, in relying on it.
DeSantis presumably hopes that bill will ultimately give the Supreme Court an opportunity to reconsider what it has said about the limits that the First Amendment imposes on defamation law. Several justices, to varying degrees, might be open to that. Justice Clarence Thomas has questioned the legitimacy of Sullivan itself, while Justice Neil Gorsuch worries that the current rules are ill-suited to a situation where, thanks to the internet, "virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world," without the benefit of editors or fact checkers.
"In 1964, the Court may have seen the actual malice standard as necessary 'to ensure that dissenting or critical voices are not crowded out of public debate,'" Gorsuch wrote in 2021 when the Court declined to hear a defamation case. "But if that justification had force in a world with comparatively few platforms for speech, it's less obvious what force it has in a world in which everyone carries a soapbox in their hands."
Even before that world had fully materialized, Justice Elena Kagan had qualms about the obstacles that the Supreme Court had erected for defamation plaintiffs. "Not all such suits look like Sullivan, and the use of the actual malice standard in even this limited category of cases often imposes serious costs: to reputation, of course, but also, at least potentially, to the nature and quality of public discourse," Kagan, then a University of Chicago law professor, wrote in a 1993 review of Anthony Lewis' book Make No Law: The Sullivan Case and the First Amendment. "The adverse consequences of the actual malice rule do not prove Sullivan itself wrong, but they do force consideration of the question whether the Court, in subsequent decisions, has extended the Sullivan principle too far."
University of Tennessee law professor Glenn Harlan Reynolds seems to agree that the post-Sullivan extensions are the real problem with current defamation law. "A precedent designed to protect coverage of political wrongdoing suddenly made it hard for celebrities to sue over falsehoods about their personal lives," he writes in a 2021 Wall Street Journal essay. "Anyone, however obscure, who spoke out would lose traditional protection against libel and slander. The term 'thrust' suggests it is vaguely inappropriate for ordinary citizens to take part in public affairs; at any rate, the price for doing so was to make your reputation fair game, a tax of sorts on speech."
Reynolds also suggests that it was mistake to require evidence that the defendant actually "entertained serious doubts" about the truth of his statements, as opposed to asking whether a "reasonably prudent" person would have had such doubts. And he notes that more recent Supreme Court decisions "allow a case to be dismissed before the plaintiff can engage in discovery unless the plaintiff can demonstrate—not merely allege—actual malice." That means "the plaintiff has to prove the defendant's state of mind before being authorized to gather evidence."
The upshot of those extensions, Reynolds says, is that "if a news organization defames you, it's almost impossible to find redress in an American court." At the same time, he acknowledges the seriousness of the concerns underlying Sullivan. "Sullivan's was just one of many such lawsuits filed against national news outlets, and the strategy was, until the Sullivan decision, a highly successful one," Reynolds notes in a 2020 research paper. "These lawsuits were intended to chill or banish negative coverage."
Reynolds suggests "remedies that fall short of overturning Sullivan, but that would still represent a significant change in current law." One possibility, he says, "would involve simply eliminating the 'public figure' concept and returning to the 'public official' language of the Sullivan opinion. This approach would undo most of the harm to plaintiffs, while retaining the rationale for the original decision, which was inspired by a cabal of state officials trying to avoid media scrutiny."
If the Supreme Court had done that prior to 2020, and if New York had taken advantage of the new leeway by changing its defamation rules, Fox News would be in even more trouble than it is now. In trying to meet the current standard, Dominion has marshaled compelling evidence that Fox executives, producers, and hosts knew the stolen-election narrative was false.
"One of the defenses is that even false speech about public figures is protected so long as it is believed by the speaker," the illustrious First Amendment attorney Floyd Abrams told the Associated Press. "But no one at Fox appears ready to say that he or she did believe the assertions…and there now appears to be substantial evidence that no one there at Fox did so. It's a major blow."
If Dominion's status as a "public figure" did not matter, the company would have to prove negligence rather than "reckless disregard" for the truth. Based on the evidence we have seen so far, it seems to me, satisfying that weaker test would be pretty easy.
By contrast, ditching the "public figure" extension would not have helped Trump win his lawsuit against CNN. Most of the allegedly defamatory statements he cites were made when he was president, so they would qualify as criticism of a public official. And while some of those statements (e.g., likening Trump to "Hitler, Stalin, and Mao") were undeniably hyperbolic, they were expressions of opinion rather than assertions of fact. Other labels that CNN personnel or guests applied to Trump (e.g., "demagogue," "racist," "insurrectionist," and "Russian lackey") likewise fall squarely into the category of the "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials" that the Supreme Court was keen to protect in Sullivan.
It is therefore not surprising that Trump, even while insisting that he can meet the actual malice standard, argues that he and similarly situated plaintiffs should not have to do so. "In circumstances like these," his complaint says, "the judicially-created policy of the 'actual malice' standard should not apply because 'ideological homogeneity in the media—or in the channels of information distribution—risks repressing certain ideas from the public consciousness just as surely as if access were restricted by the government.'"
Trump is quoting from a 2021 dissent by the late D.C. Circuit Judge Laurence Silberman, who conceded that "there are a few notable exceptions to Democratic Party ideological control." He mentioned Fox News, the New York Post, and The Wall Street Journal's editorial page, adding that "it should be sobering for those concerned about news bias that these institutions are controlled by a single man and his son."
Trump's argument, which is based on the purported dominance of large, left-leaning news outlets, is strikingly different from Gorsuch's concern about "a world in which everyone carries a soapbox in their hands." Where Trump sees too much gatekeeping, Gorsuch sees too little. And it seems unlikely that Gorsuch, notwithstanding his concerns about the ease with which people can be defamed and the difficulty of recovering damages when that happens, would go along with Trump's vision of a First Amendment that allows civil liability for harsh criticism of the president.
"Suits like these do not throttle the First Amendment," Trump claims. "They vindicate the First Amendment's marketplace of ideas." He says that while arguing that it should be a tort to call the president a demagogue.
That peculiar understanding of free speech should trouble Americans of every political and ideological flavor. Republicans (especially Trump and his supporters) are no less prone to rhetorical overkill than Democrats, and conservatives have as much reason as progressives to worry about the consequences of the weakened defamation standards that Trump favors.
