Defamation law needs an upgrade
Re-visiting New York Times v. Sullivan
Before 1964 in the U.S., if you thought you'd been defamed, you'd go to court and claim you'd been wronged under state law. These state tort laws (French for 'wrong') required you to prove that a third-party had written or uttered a statement about you that had reached a public audience, and that these words harmed your reputation. You did not then have to prove that the statement was false: the defendant could raise truth as one of his defenses. Nor did you have to prove anything about the defamer's state of mind, or his possible negligence. All you needed to show in court was that it happened.
In 1964, the U.S. Supreme Court, in a unanimous decision, fundamentally changed defamation law. In that case, NY Times v. Sullivan, the Montgomery, Alabama police chief sued the newspaper over the content of an advertisement it published, the pur- pose of which was to raise money for Martin Luther King's then pending perjury trial. NY Times v. Sullivan
While Chief Sullivan was not named in the ad, he claimed defamation because people would know he was the Montgomery Police Chief at the time. The falsehoods in the Times ad were rather minor. For instance, MLK had been arrested in Montgomery four, not seven times; and the police there did not create a ring, but a square, around a campus. Seriously? These “falsehoods” were enough, at any time, to sue for damages? Nevertheless, Sullivan won, and was awarded what at time was the largest jury verdict for damages in Alabama history. The case was decided by an Alabama jury, probably around 1960, and I’d bet it was entirely white and 100% male.
In Sullivan, the Court made two large changes to defamation law. First, it brought defamation under the protection of the First Amendment, thereby federalizing under the Constitution what had previously been a matter of state law. For the first 175 years of our country's history, there was no notion that the First Amendment protected false, defamatory statements. Pre-Sullivan defamation cases were treated state-by-state under principles of tort law---- the same category of legal principles that pro- tected people if they were 'wronged' by a drunken wagon driver who ran over their sheep, or trespassed and stole several bushels of apples.
Second, the Sullivan Court invented the concept of the public figure for purposes of defamation law. If you were deemed to be a public figure, your burden of proof bec- ame far more difficult. You now had to prove that you were the target of a false and reputation-harming statement, and that the alleged defamer knew the statement was false, or acted with so-called 'reckless disregard' for the finding truth. In subsequent cases, courts have applied Sullivan to private, non-public plaintiffs requiring them to prove, at a minimum, that the publisher or broadcaster was negligent in failing to ascertain that the statement was false and defamatory. (Negligence is another concept of tort law. To prove it, you must show that the so-called reasonable man would not have published such a false and reputation-harming statement because he would have done his research had learned it was false before publication).
Do I think Police Chief Sullivan should have collected $500,000 from the NY Times for the minor inaccurate statements made about his department? No, particularly as this was still the Jim Crow era, with government officials in the Deep South doing everything they could to preserve segregation, and abusing the system to interfere with the civil rights movement. And that interference by Alabama public officials was the gist of what the Times published. Note that the statements in the Times were not language in a news article by a reporter, but words in a paid advertising/advertorial sponsored by people like Harry Belafonte and Marlon Brando in support of MLK. Chief Sullivan was not the only Alabama official who was suing the Times at the time; there were a dozen or so other libel suits, seeking some $6 million in damages. There seems little doubt that the Alabama officeholders were seeking to intimidate the Times and other news media by using the libel laws to stifle coverage of their activities.
We are now nearly sixty years past Sullivan and the media landscape and culture have changed dramatically since then. The idea that the Press in America is threatened, or in need of special legal protection (and Sullivan certainly gave the Press that) is not persuasive. The Press today bears little resemblance to the media world of 1964 when we had three broadcast networks and innumerable daily newspapers. People listened to radio frequently and for long stretches of time, and about a quarter of the country read Time Inc.'s Life magazine every week. Remember Life? It stopped weekly publi- cation in the early 70s, so perhaps you don't. There was no cable, no social media, no blogs, nor podcasts when Sullivan was decided. The media was the Mainstream Media.
With very few exceptions, today, there are few news companies left in America that take seriously the mission to provide complete and objective information on matters of public importance to their audience. The slogan that 'we must protect the media to allow for a robust discussion by informed citizens in a democracy' is just that-----a slogan. On the contrary, the media in America, by becoming a cluster of partisan sites, some less shrill than others, but each catering to an audience which seeks con-firmation of its bias and ideology, has undermined the possibility for serious discus- sion of public affairs. Thoughtful consideration of public affairs is our Loch Ness Monster: it's talked about endlessly, but you never see it.
The media in America is now a vast, fragmented space, with an uncountable number of outlets. One obvious consequence of this proliferation is that the traditional view of journalism as primarily a fact-finding enterprise, coupled with a limited amount of opinion expression, has been inverted. What we have now with Fox News and MSNBC ---- just two of many examples----are media operations that are incessant distributors of opinion. Even when they appear to be reporting a news story, they typically present it only after it's been introduced with the preferred ideological slant, that quickly and effectively subsumes fact into opinion. If you don’t pay very close attention, you’ll miss the set-up and assume what you’re watching is a news story. Long gone are the days of Walter Cronkite or Chet Huntley (or Barbara Walters) reporting the nightly news in a more or less neutral, considered manner.
If all that were involved here were the expansion of opinion pieces and the shrinkage of objective news coverage, defamation law would be largely irrelevant, as statements of opinion, in contrast to those of fact, are in large measure protected against defam-ation claims. (The Supreme Court in 1990 did narrow the fact/opinion issue, making some opinion publications subject to defamation claims. Milkovich v. Lorain Journal)
While the line between fact and opinion may at times be blurry, there's a clear, un-subtle difference between a Fox News person saying on-air, "Members of Trump's election team believe that the Dominion Voting Systems’ ballot readers are rigged and not counting Trump votes accurately——" as opposed to saying, repeatedly, "There's evidence that Dominion's machines are rigged."
Dominion is now suing Fox and a number of its on-air personalities for $1.6 billion in damages because a version of that italicized statement about their voting machines was made on a number of occasions by different people on Fox News. We have just learned from the deposition of Fox's owner, Rupert Murdoch, that Fox on-air people knew their statements about Dominion's machines were false, but they repeated them anyway. Thus, even with the high bar presented by the Sullivan standard, it looks as if Dominion will collect a substantial amount of money from Fox.
In our present media world, where most so-called news organizations are simply peddling opinions and doing whatever they can to increase their profits, why is the Sullivan standard appropriate? The liberal-leaning cable news networks are as guilty of this peddling as Fox and its ideological allies. Why shouldn't Dominion simply be able to go to court and show that the Fox News statements were false and harmful to its reputation? Why should Dominion have the additional burden of showing that Fox's on-air people knew the allegations about rigged machines were fabricated, or that they made no effort to independently verify the truth of what on the surface would appear to be an outrageous story with no basis in fact?
Media companies should be held to a basic standard of responsibility: don't say or write anything until you've corroborated it from reliable sources. In Sullivan, there was testimony that the Times employees who reviewed the copy of the advertorial did zero fact checking. They assumed that if major celebrities of the day, such as Bella- fonte and Brando were willing to sign on as sponsors of the ad, it must be legitimate.
The few responsible media companies still left standing generally require, I’m told, that their people must corroborate stories from at least two sources believed to be reliable. If you're not 100% sure that all, or nearly all, of the important details in your story are true, then you should either not publish it; or state explicitly at the beg-inning of the piece what you know, and what you are not sure about. This disclaimer will lessen the sizzle value of your piece as"breaking news," and reduce its sensational impact on your viewers, who have become habituated to the news as outrage output. And taking these steps may lower your ratings, your company's profits, and possibly your bonus.
It's no excuse that we live in an around-the-clock, constantly updating news cycle that is said to put pressure on media companies to frequently publish new information, even if they have had very little time to verify its accuracy. It's surely true that the 24-hour news cycle has not led to the dissemination of a more accurate or thorough version of the news. If the unrelenting pressure of the news cycle produces little of value, why not jettison it?
Surely, barring a Presidential assassination or other world-shattering event, we would all be just fine with news cycles that updated, what, twice a day? The Nightly News at 7 in the evening and the Morning News at 7 the next day. Of course, we have that now. The problem is all the other garbage we have floating through the news eco-system before and after those reports. A carefully followed, twelve-hour news cycle should give reporters, in nearly every case, many hours to check their stories for accuracy before publication. And if they don’t have time to check a piece of “breaking news,” hold it, until you can verify it.
A further weakness of the Sullivan standard is the idea of a public figure. Why is Dominion Voting Systems, a company few of us would have heard of before the 2020 election, all of a sudden a public figure, and not a private corporate plaintiff? It's entirely circular to say that Dominion is a public figure because Fox's alleged defamation of the company put it in the public realm. Am I a public figure because I publish on Substack, or will I become such a figure only once my posts are read by, say, 10,000 people? At the extremes, it's easy to apply the distinction; the president is a public figure, but my Aunt Ada, a retired schoolteacher living in a retirement home in Brunswick, Maine is not. Yet, with access to publication via blogs, social media so effortless and so widespread today, there's an argument that most of us are public figures. And if everyone's a public figure then the term is meaningless. That's hyper-bole, of course. But public figure is a pretty wobbly concept. Police Chief Sullivan is certainly one, but is a rank-and-file member of his police department also one? Is a schoolteacher a public figure by virtue of the fact that she works in a public school?
We can all agree that public officials, especially the ones we elect, take the job knowing their actions will be closely scrutinized. That is entirely appropriate as a means to enforce the values that support democratic government. Yet, the right to scrutinize does not exist in a responsibility-free vacuum. Scrutiny implies respon-sibility, seriousness and diligence. The media don’t get a pass out of the obligation to obey the requirements of scrutiny.
Under current law, if a private plaintiff sues a media company for defamation, they need to prove negligence— that the reporter/newscaster did not take reasonable steps to verify the accuracy of the statement before publishing it. Why isn't that standard sufficient today, for all plaintiffs, bringing such a lawsuit? Why are so-called public figures held to a higher standard of proof? Everyone should have the same right to protect his reputation from unfounded attack. Full stop.
By the way, I don't think that Dominion is necessarily entitled to $1.6 billion in damages from Fox, even if part of that figure includes damages to punish what seems to have been blatantly outrageous conduct by Fox employees. Dominion will need to convince the jury that it suffered economic damages as a result of Fox's behavior. Has it lost contracts to provide election machines for future elections, for example? And you can't just make up a number for the value of those lost contracts. Remember: you are not allowed, no one is allowed, to just make stuff up.
Unfortunately, even if we change our libel laws along the lines I've suggested, to effectively limit the spread of damaging falsehoods would require Congress to amend the law that, since 1996, has shielded Internet companies from libel actions for provi-ding platforms for third-parties to publish their material. Congress has so far been unwilling to consider changing Section 230 of the Federal Communications Act. If Joe libels me in a Facebook post, I could in theory sue him for libel, but if Joe lives in a trailer and is way behind in his child support, what incentive would I have to spend thousands of dollars in legal fees to prove a point and collect no damages? Suing Facebook is another matter. Facebook and its ilk will claim that if they had to hire vetters to review every post, pre-publication, they would be out of business. Perhaps. Perhaps that would be a good result.
Finally, there's a larger issue here than re-considering the legal standard set by NY Times v. Sullivan. While it continues to be fashionable in certain echelons of the thinking class to claim that the idea of truth is illusory or relative, most thoughtful people disagree. Few people believe that spreading falsehoods is a good idea, or one that society should tolerate, let alone promote. Even the most hardened ideological extremists in our midst believe that the nonsense they spout is the truth, not a relativist possible version of the truth. If we have a consensus to discourage, even penalize, the spreading of lies, and the essence of upholding the truth, that standard should apply throughout society. The media should not be a privileged actor here, protected from the consequences of spreading harmful falsehoods.