Targeting the press
Some public officials want to roll back long-standing legal protections for journalists. Might they succeed? Here's everything you need to know:
What's the origin of libel law?
Before the Revolutionary War, any criticism of colonial officials was considered "seditious libel" — a criminal offense under English common law. It did not matter if critical statements about authorities were true. That changed with America's first landmark libel case, in 1735. John Peter Zenger, printer of the New York Weekly Journal, had angered the crown-appointed governor, William Cosby, with frequent criticism and mockery. Cosby had Zenger jailed and tried for sedition — but his lawyer argued that people have a "natural right" to complain about malevolent or incompetent rulers, and convinced a jury to acquit Zenger on the grounds that the paper's criticisms were true. The principle that the truth cannot be libelous became a bedrock of American free-speech law, and was incorporated into the laws of many states after the U.S. was founded. But until the mid–20th century, state laws put the burden of proof on defendants to show their statements were true. That changed with the 1964 Supreme Court case New York Times v. Sullivan, which set a groundbreaking precedent.
What did the Sullivan ruling say?
L.B. Sullivan was a city commissioner in Alabama who sued The New York Times for defamation over an ad placed by civil rights activists accusing Alabama police of mistreating protesters. Sullivan said the ad got several minor details wrong, and won a $500,000 jury verdict. But the Supreme Court unanimously overturned that verdict and set a new libel standard: Plaintiffs must prove "actual malice" — that the defendant published a statement "with knowledge that it was false or with reckless disregard of whether it was false or not." Erroneous statements are "inevitable in free debate," wrote Justice William Brennan, declaring that "debate on public issues should be uninhibited, robust, and wide-open." Subsequent rulings extended the "actual malice" standard to public figures as well as government officials. (The standard for libeling private individuals is lower: The news organization or accuser must be found to have acted with "negligence" in making a false, damaging statement.) Free speech advocates say Sullivan's standards have been crucial to the functioning of a free press. But some Republicans say the ruling should be overturned.
Why do they think so?
They say the "actual malice" standard makes it too hard for public officials to successfully sue news organizations. Donald Trump, who last year sued CNN for libel for airing statements that he's "a racist" and "Russian lackey," has frequently said legislators or courts should "open up" libel laws so he and others could sue news outlets that "write purposely negative and horrible and false articles." Florida Gov. Ron DeSantis (R), a frequent press combatant, has also assailed the Sullivan standards, saying they enable the press to "smear" public figures. Two bills his allies recently introduced in the Florida legislature would drastically weaken reporters' legal protections.
How would the bills do that?
One provision would establish a presumption that "statements by anonymous sources" are false, and compel reporters to reveal such sources. Accusing public officials or religious leaders of "discrimination" against gays, women, or racial minorities would be deemed libelous. The bills put the onus on news organizations to "validate or corroborate the alleged defamatory statement"; plaintiffs who won such suits would get all legal fees paid by losing media organizations. Critics of the proposal say that if that new standard were established, the press could face a blizzard of lawsuits that would lead to financial ruin even if the suits failed. It's "a deliberative effort to punish media organizations" that criticize DeSantis, said Thomas Julin, a Florida First Amendment attorney. If the bills became law, their constitutionality would be challenged — giving conservatives on the U.S. Supreme Court a chance to revisit the Sullivan ruling and possibly overturn it. There's "a growing sense" among Sullivan opponents that "this is their day," said veteran First Amendment lawyer Floyd Abrams.
Would the court do that?
Justices Clarence Thomas and Neil Gorsuch have both criticized the Sullivan standard. It has "evolved into an ironclad subsidy for the publication of falsehoods," wrote Gorsuch last year. How many other justices might potentially vote to overturn Sullivan is unclear, but First Amendment lawyers believe it's a matter of time before the court chooses to hear a challenge to that precedent.
What's at stake?
If libel standards are lowered, say First Amendment advocates, it would lead to a flood of lawsuits designed to stifle criticism of government officials and inhibit investigative journalism. "It would have a chilling effect on the press," said Samantha Barbas, a University of Buffalo law professor who wrote a book on the Sullivan case. Under a lowered standard, however, conservative media outlets like Fox News — which routinely attack people on the left in very caustic, personal terms — would also become vulnerable, said Edward Birk, a First Amendment lawyer in Florida. "These kinds of changes will cut far right and far left and everywhere in between," he said.
The Dominion suit against Fox
The "actual malice" standard set in New York Times v. Sullivan sets a high bar for libel plaintiffs that is rarely cleared. But legal experts say a possible exception might be the $1.6 billion suit against Fox News by Dominion Voting Systems. Dominion says it suffered serious reputational damage when the network aired false statements by Donald Trump's lawyers that it was part of a plot to rig voting machines to change Trump votes to votes for Joe Biden in the 2020 election. Uncovered texts and emails have revealed that Fox hosts and executives called the claims "ludicrous" and "mind-blowingly nuts," with Fox owner Rupert Murdoch calling them "terrible stuff damaging everybody." These statements are the kind of smoking-gun evidence plaintiffs can rarely find, say libel experts. "I have never seen a defamation case with such overwhelming proof" that the defendant "was making up fake information," said Harvard Law professor Laurence Tribe. In its defense, Fox's lawyers say the network simply covered newsworthy claims that election machines were rigged — a "fundamental" right "protected by New York Times v. Sullivan."
This article was first published in the latest issue of The Week magazine. If you want to read more like it, you can try six risk-free issues of the magazine here.