Justice Clarence Thomas used to be the radical conservative outlier on the U.S. Supreme Court. Today, with the ascendance of a Trump-packed supermajority, he has become its senior voice, and his writings are harbingers of future rulings. His urging of a narrowing of press protections is a looming, if not yet imminent, threat.
Free press advocates cheered the Supreme Court’s recent denial of a petition by Coral Ridge Ministries to challenge the First Amendment shield that, for more than 50 years, has constitutionalized defamation law and protected robust publishing concerning public figures. In February, former Alaska Governor Sarah Palin’s losing libel case against The New York Times for an allegedly defamatory editorial was similarly celebrated. But both of these cases were not close calls. Serious risks abound, augured by Thomas’s lonely dissent in the denial of certiorari in Coral Ridge. The appellate pipeline is full of cases presenting different fact patterns that could be used to reverse decades of press freedom. This is no time for complacency.
Since the 1964 landmark New York Times Co. v. Sullivan decision and its progeny, there has been a high legal standard to protect news coverage of government officials and other public figures. The law permits irresponsible reporting if there is no “actual malice”—that is, knowingly publishing a falsehood or recklessly disregarding the truth. It protects errors made in good faith, even those that cause grievous harm to an individual’s reputation. It is this “actual malice” standard that Thomas wants to remove.
Expect an increase of well-funded litigation to stifle the media. Look for plaintiffs to file complaints in jurisdictions with friendly laws and judges who allow plaintiffs to discover defendants’ information, but not the reverse. Think variations of the tech billionaire conservative activist Peter Thiel bankrolling Hulk Hogan’s suit against Gawker, which destroyed the publication, satisfying Thiel’s vendetta against it. In Arizona, the Thiel protégé Blake Masters is running for the U.S. Senate. He has threatened to bankrupt the independent, nonprofit Arizona Mirror using his mentor’s legal tactics.
Sometimes legal victories are less important than exciting your base. Winning can be measured by simply inflicting serious harm on media defendants, forcing them to bear burdensome costs—not just spiraling legal fees and increased insurance expenses, but the valuable time, sometimes stretching to years, of reporters, editors, and publishers, responding to massive discovery demands, lengthy depositions, and other exhausting pretrial preparation. To these plaintiffs, simply forcing stiff-necked executives and reporters to expose their private thought processes and open their newsroom kimonos to reveal flawed but not unlawful news-gathering and decision-making practices is a mark of success. If, in the process, other news organizations, large and small, are intimidated into making less courageous coverage decisions, so much the better.
Decades ago, media defendants would appeal losing verdicts. Today, with growing costs and uncertain outcomes, more settle. Remember Disney paying Beef Products Inc. more than $177 million to drop a $1.9 billion defamation suit against its ABC News subsidiary for its well-sourced investigation describing BPI’s meat trimmings as “pink slime.” Few media outlets can respond effectively to vexatious lawsuits without strong protections from laws and judges. Even with legal protections, how many controversial stories are never pursued or are spiked for fear of retaliation? The chilling effects are obvious.
It takes four justices to grant a petition for review. Thomas insists that the Sullivan decision be overruled. Justice Neil Gorsuch, more nuanced, has urged that it be reconsidered. He is disturbed by the proliferation of unreliable new outlets unsupported by fact-checking and “24-hour cable news and online media platforms that ‘monetize anything that garners clicks.’” In the past, Chief Justice John Roberts has also criticized aspects of Sullivan. It’s not hard to imagine Justices Samuel Alito, Brett Kavanaugh, or Amy Coney Barrett signing on to hear a challenge to the case.
Depending on the facts involved, might Justice Elena Kagan provide another stepping-stone to granting review? The most promising area for revisiting the “actual malice” standard could come in a case featuring the sympathetic travails of a private figure drawn involuntarily into the public arena, a “vortex” or “limited purpose” public figure. Before joining the Court, Kagan wrote a 1993 law review article about “Sullivan Then and Now.” In it, she expressed concern about the fate of “a relatively powerless individual … with little societal influence and few avenues of self-protection.” Think about much-maligned rape victims or bereaved survivors like the Sandy Hook parents. Could a victim of social media character assassination who has no legal recourse, because voluntarily going online makes her a “public figure,” provide a way to adjust the current standard?
The First Amendment scholars RonNell Andersen Jones and Sonja West have tracked years of increased negativity toward the press and warn that the Court is no longer a bulwark. Freedom of the press as a “specified recognizable liberty,” they wrote, has “rhetorically … all but disappeared.” They added that the Court is “giving much less consideration to the press and its freedom than it did a generation ago, and increasingly does not think well of it.”
If it considered a challenge to Sullivan, the Court could take modest steps, including narrowing the definition of a “public figure.” It could act more broadly, overturning long-established precedent, and unintended consequences be damned.
Changes to defamation laws require delicate calibration. Some of Gorsuch’s legitimate concerns about today’s media environment might be better addressed through legislation, but that assumes a wise Congress. In 2010, Congress unanimously passed the SPEECH Act to protect against “libel tourism.” It made foreign libel judgments unenforceable unless that jurisdiction provided at least as much protection to the defendant as our First Amendment. In 2015, a bipartisan effort failed to create a level playing field to protect free speech on matters of “public concern” against meritless “SLAPP suits” that allege defamation but are designed only to harass and financially burden defendants.
Section 230 of the 1996 Communications Decency Act provides immunity for technology companies for content hosted on their networks. That law was created in a time of “naïve optimism” about a nascent industry. Despite bipartisan support for amending it, there is no consensus on how to do that.
Years ago, the First Amendment champion Anthony Lewis urged the creation of a legal forum to establish the truth when a person claims to have been libeled. A successful plaintiff would receive no damages. Instead, there would be a formal declaration that the defamatory statement was false and a judicial order that the publisher print a correction. Where the only issue is determining truth or falsity, there would be no need to probe a publisher’s state of mind or unearth details of an organization’s work practices.
A University of Iowa study concluded that most libel plaintiffs sue not for money but to vindicate their reputations. A 1985 bill providing a declaratory judgment remedy that limited the defamation inquiry to falsity was filed in Congress but died quietly. In today’s Orwellian world, where many members disagree on what “facts” and “truth” even mean, such First Amendment legislation is a nonstarter.
To make matters worse, surveys by the Freedom Forum, Gallup, and others reveal that trust in the news media is virtually as low as it has ever been. Studies find that majorities of Americans believe the news media are biased, uncaring, and try to cover up their mistakes. Today only 14 percent trust journalists, and 41 percent say journalists threaten the First Amendment. Indeed, only 4 percent say press freedom is the First Amendment right they consider essential. PBS is the one media outlet trusted by more than 25 percent of Americans. And while social media companies are overwhelmingly disparaged, most young people, disturbingly, get their news from them. Such public distrust will surely encourage congressional and judicial mischief.
This is a far cry from the days when journalists reporting on southern brutality toward civil rights demonstrators were heroes, and others basked in a post-Watergate afterglow. Free press advocates overconfident about recent high-profile failed defamation lawsuits against media targets are missing the rest of the story. A lot of work must be done to be optimistic about the future.