By Dan Kennedy • The press, politics, technology, culture and other passions

How new threats to libel protections could weaken Times v. Sullivan

Is this Devin Nunes’ cow? Photo via Wikimedia Commons.

Trouble has been bubbling for the past several years regarding libel protections for the press.

In 2019, U.S. Supreme Court Justice Clarence Thomas wrote that it was time to reconsider the landmark 1964 ruling of New York Times v. Sullivan, which decreed that public officials can’t bring a successful libel suit unless they can prove that false, defamatory material about them was published in the knowledge that it was false or with reckless disregard for the truth. (That standard was later extended to public figures as well.)

Then, as I wrote earlier this year, Thomas was joined by Justice Neil Gorsuch in an opinion so slick you could slip on it and get hurt.

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Next week, the court will consider whether to hear two libel cases that would give them an opportunity to weaken the Times v. Sullivan protections. Thomas and Gorsuch may prove to be outliers, but given the court’s new supercharged conservative majority, we shouldn’t take anything for granted. First Amendment lawyer Floyd Abrams writes in The New York Times:

Should the court agree to hear one or both of the libel cases does not mean, of course, that either or both would be overruled…. But it is troubling that two of the court’s nine justices have criticized Sullivan and seem ready to overrule it. Only four votes are required for the full court to take up cases, and if it does so, a fifth would be needed for any ruling.

And that’s not the only sign of trouble on the libel front. Erik Wemple of The Washington Post details a bizarre case involving U.S. Rep. Devin Nunes, a California Republican who is so litigious that he once sued a Twitter account called “Devin Nunes’ Cow.”

I’m not going to go deep into the details; Wemple’s got that nailed down for you. But the outline of it is that Nunes sued the journalist Ryan Lizza over an article he wrote for Esquire. Nunes’ libel claim appears to be hanging by a thread — again, because it seems unlikely that Nunes will be able to meet the Times v. Sullivan standard. But at some point after he filed his lawsuit, Lizza tweeted out a link to the article. Nunes, of course, claimed that was libelous as well.

Rather than tossing the Twitter claim, the U.S. Court of Appeals for the Eighth Circuit have kept it alive for further consideration, “even though” as Wemple writes, “other courts have ruled that just linking to a long-standing story doesn’t constitute ‘republication.'” The court ruled that because Nunes’ suit put Lizza on notice that his story might contain falsehoods, then he should have refrained from tweeting it out (never mind that Lizza insists his story was true). But Wemple quotes Jeffrey Pyle, a Boston-based First Amendment lawyer at Prince Lobel Tye:

Until now, the courts have been unanimous that hyperlinks, retweets, and other references to allegedly defamatory articles are not “republications.” The Eighth Circuit departs from this consensus without much, if any, explanation why.

Journalists are able to do the work they do because they don’t have to worry about frivolous lawsuits. That has now come under question, and we all need to keep a close eye on what happens next.

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1 Comment

  1. Steve Ross

    Dairy Star is a classic small B2B publication in print (as a twice-monthly) and online. In its own words, “The Dairy Star is mailed free to dairy farmers in Minnesota, South Dakota, North Dakota, Iowa, Wisconsin, and parts of Michigan and Illinois. 2,000 additional copies are distributed to advertisers, paid subscribers, complimentary copies and newsstand copies.”

    Overall, B2B employs far more journalists than all newspapers, broadcasters and general-interest magazines combined. The stories do NOT all have the editorial quality of the article Nunes objects to. Then again, neither does the NYT.

    Ah, dairy. This is (hardly!) an industry I follow, but one of my daughters was an Ag major in Missouri (learning how to raise horses) before she decided to save the world in public health. The (cow) dairy industry is subsidized. It gets some federal money. In return, states can and often do have price controls and production limits. Massachusetts is one of them. I have been looking over my wife’s shoulder as she episodically covers the industry in Vermont and elsewhere in New England. In VT the strategy has been to switch to sheep and goats. There’s an entire research program at the state university to figure out what to do with goat milk (it is very sweet). Cheeses and sauces! Sheep don’t actually produce much milk. Who (aside from baby sheep) knew?

    Looks like the Iowans are trapped between need for low labor costs and requirement to sell at controlled prices… and are not as inventive as Vermonters. Also, VT farmers benefit from a labor pool they can tap legally for periodic Canadian workers. New Englanders know when to move on — the entire economic base in Massachusetts has changed three times in my lifetime, from textiles to defense electronics to pharma. Midwesterners, not so much.

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