Tag: Clarence Thomas

A tale of two libel suits: ABC News’ shocking abdication, and the end of the line in Everett, Mass.

George Stephanopoulos earlier this year. Official White House photo by Carlos Fyfe.

For this morning, a tale of two libel suits, one national, one local. The national case threatens to undermine protections for journalism that have been in place since 1964. The local case will result in the closure of a weekly newspaper that started publishing 139 years ago.

First, the national lawsuit. On Saturday, ABC News agreed to pay $15 million to Donald Trump in order to settle a libel claim over repeated on-air assertions by anchor George Stephanopolous that a jury had found Trump “liable for rape” against the writer E. Jean Carroll. The money will be paid to Trump’s presidential library and foundation, Paula Reid and Katelyn Polantz report for CNN. ABC will also pay $1 million for Trump’s legal fees and issue an apology.

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The problem is that what Stephanopoulos said was substantially true. The CNN story put it this way: “In 2023, a jury found that Trump sexually abused Carroll, sufficient to hold him liable for battery, though it did not find that Carroll proved he raped her.” And here’s the big “but”: In August 2023, U.S. District Judge Lewis Kaplan found that Trump had, in fact, raped Carroll under the everyday meaning of the word if not under the legal definition. Here’s what Lewis said at the time in the course of ruling on one of Carroll’s defamation proceedings against Trump:

Indeed, the jury’s verdict in Carroll II establishes, as against Mr. Trump, the fact that Mr. Trump “raped her,” albeit digitally rather than with his penis. Thus, it establishes against him the substantial truth of Ms. Carroll’s “rape” accusations.

I’ll give you a moment to throw up. Now, then, let’s parse this, shall we? A jury found Trump liable for “sexual abuse,” which Judge Lewis ruled was tantamount to being found liable for rape. What Stephanopoulos said was inaccurate only under the most hypertechnical interpretation of what actually happened — and, as I said, Stephanopoulos’ assertions were substantially true, which is supposed to be the standard in libel law. But ABC and its parent company, Disney, decided to appease Trump rather than continue to fight.

And what’s with Stephanopoulos? At 63, he has made many millions of dollars. If he had resigned and continued to fight rather than go along with his corporate overlords, he could have been a hero. Who knows what opportunities would have opened up for him? Instead, he’s content to continue as a highly compensated apparatchik. It’s sad.

By settling with Trump, ABC is following in the path of other corporate titans, a number of whom have donated $1 million apiece to Trump’s inauguration festivities. The donors include Facebook CEO Mark Zuckerberg, OpenAI CEO Sam Altman and Amazon founder Jeff Bezos, who owns The Washington Post.

Under the 1964 Supreme Court ruling of Times v. Sullivan and subsequent refinements, public officials and public figures like Trump need to show that statements they find harmful are false, defamatory and made with actual malice — that is, with knowing falsehood or with reckless disregard for the truth — in order to win a libel suit.

What Stephanopoulos said arguably wasn’t even false, and surely it didn’t amount to actual malice. A deep-pockets defendant like Disney ought to stand up for the First Amendment lest its cowardly capitulation to Trump harm other media outlets without the wherewithal to fight back.

Coming at a time when two of the Supreme Court’s justices, Clarence Thomas and Neil Gorsuch, have publicly signaled that they would like to weaken Times v. Sullivan, ABC’s behavior is shockingly irresponsible.

Local paper to close

Now for the local case. On several occasions I’ve written about an explosive libel suit brought against the weekly Everett Leader Herald by that city’s mayor, Carlo DeMaria.

Unlike the matter of Trump and ABC, you will not find a clearer example of actual malice, as Leader Herald publisher and editor Joshua Resnek testified in a deposition that he’d made up facts and quotes in a campaign aimed at impugning DeMaria’s integrity. That news was broken in January 2023 by Boston magazine’s Gretchen Voss. Indeed, eight months later, Middlesex Superior Court Judge William Bloomer froze assets belonging to Resnek and one of the paper’s owners, Matthew Philbin, because he believed DeMaria was likely to win his case.

The denouement came Sunday when The Boston Globe reported that the suit would be settled for $1.1 million and that the Leader Herald would be shut down as part of the settlement. Globe reporter Maddie Khaw writes:

Resnek, who writes and edits most of the Leader Herald’s articles, has frequently used the nickname “Kickback Carlo” to refer to DeMaria, a moniker representing Resnek’s claims that DeMaria had received illegal payments in real estate deals.

Records show that Resnek has admitted to knowingly reporting falsehoods and fabricating quotes.

“Mr. Resnek wrote what he wrote because he believed Mr. DeMaria was bad for the City of Everett and he was motivated by the fanciful notion that he could bring about Mr. DeMaria’s defeat in the [2021] election for Mayor,” the defendants’ lawyers wrote in court documents.

In fact, DeMaria was re-elected in 2021.

DeMaria and his lawyers will hold a news conference later today. Meanwhile, there is nothing up at the Leader Herald’s website about the settlement, which features several stories that were posted  as recently as this month.

Incredibly, Everett is also the home of two other weekly newspapers, the Everett Independent and the Everett Advocate, both of which are part of small, locally owned chains; neither of them has anything on the settlement, either.

We need terms limits for SCOTUS as well as some constraints on its powers

Photo (cc) 2021 by TapTheForwardAssist

Like no doubt many of you, I am horrified by the Supreme Court’s decision in the presidential immunity case but have little to offer beyond what you’re reading and seeing elsewhere. Nor did I feel reassured when President Biden came out and read a five-minute speech. Here’s part of what the historian Heather Cox Richardson had to say in a truly chilling essay for her newsletter, “Letters from an American”:

This is a profound change to our fundamental law — an amendment to the Constitution, as historian David Blight noted. Writing for the majority, Chief Justice John Roberts said that a president needs such immunity to make sure the president is willing to take “bold and unhesitating action” and make unpopular decisions, although no previous president has ever asserted that he is above the law or that he needed such immunity to fulfill his role. Roberts’s decision didn’t focus at all on the interest of the American people in guaranteeing that presidents carry out their duties within the guardrails of the law.

It seems to me that if we’re going to save the country, it’s absolutely essential that a Democrat be elected to the White House this fall, whether it’s Biden or someone else, and that the Democrats take both branches of Congress as well. That’s a tall, unlikely order. And I’m sorry to have to be so partisan, but Bob Dole, John McCain and Mitt Romney are not walking through that door.

After that, we can talk about what needs to be done about the court, which has long since sunk into illegitimacy thanks to the machinations of Mitch McDonnell and the corruption of Clarence Thomas and Sam Alito. I’ve seen an upsurge in commentary that the court should be expanded, but that strikes me as a fool’s game — something that could easily be gamed by both parties until we’re up to a 57-member SCOTUS. Instead, I’d like to see term limits that guarantee every president will get one or two appointments plus constraints on the court’s powers, which at the moment appear to be limitless.

I would also like to see Santa.

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Thinking through what’s next following The Washington Post’s Alito debacle

Justice Sam Alito. Photo (cc) 2017 by JoshEllie1234.

A few quick follow-ups on The Washington Post’s mind-boggling failure (free link) to report that an insurrectionist flag was flying outside Supreme Court Justice Sam Alito’s home when the paper discovered it way back in January 2021:

• As I’ve written previously, news organizations never should have gotten rid of their public editors, also known as ombudsmen. A number of these positions disappeared when newspapers were shrinking and losing money. But though some newspapers that eliminated their public editors have returned to profitability, including The New York Times and The Boston Globe, the Post is in dire straits these days. Too bad. A public editor could demand answers as to why a story wasn’t published at the time and how it happened to surface right now.

• Speaking of which — why now? What happened? According to the Post’s own story on Saturday, the flag was verified by its now-retired Supreme Court reporter, Robert Barnes. Given that the court is taking some important cases related to the insurrection, did Barnes contact the newsroom to remind them?

• The Post’s executive editor, Marty Baron, announced in late January 2021 that he was retiring, and he left the paper about a month later. Baron was someone who was seemingly on top of everything, but if there was ever a time when he was giving the Post less than his full attention, this would have been the moment. Conversely, the Post was caught up reporting on the actual events of the attempted insurrection of Jan. 6. At that moment, the Alito matter may have seemed like a sidebar to a sidebar.

• As deep as the Post’s failure may have been, it may have done little damage in the long run. Alito wouldn’t have recused himself from insurrection-related cases then, and at that point there weren’t any. Nor will he now. But with Jan. 6-related cases finally coming before the court, and at a time when Justice Clarence Thomas’ corruption has been fully exposed, the story that insurrectionist flags appeared over two of the Alitos’ homes may hit harder now than it would have three and a half years ago.

• All of this serves as a reminder that no matter what you think of the three justices appointed by Donald Trump (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett), the two worst were appointed by the Bushes — Thomas by George H.W. Bush and Alito by George W. Bush.

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NHPR case illustrates the limits of actual malice

U.S. Supreme Court. Photo (cc) by Kjetil Ree

The harassment endured by Lauren Chooljian, a reporter for New Hampshire Public Radio, is frightening and horrifying. David Enrich of The New York Times reported last week (free link) that Chooljian, her parents and her editor have been subjected to vandalism and threats after she reported on sexual misconduct allegations against Eric Spofford, who founded the state’s largest network of addiction treatment centers.

Spofford denies having anything to do with the vandalism. But there’s an interesting wrinkle to the case that I want to discuss, and that’s Spofford’s libel suit against Chooljian and NHPR. Because of Spofford’s prominence, he has been designated as a public figure, which means that he must show actual malice (as well as falsity and defamation) in order to win his suit. Actual malice, as you probably know, requires that the plaintiff prove the defendant published the offending material despite knowing or strongly suspecting it was false.

NHPR has been ordered by Judge Daniel St. Hilaire to turn over transcripts of interviews, including with anonymous sources. “Legal experts,” Enrich wrote, “called the ruling unusual and alarming, saying such decisions could make it harder for journalists to investigate potential wrongdoing by public figures.” And Enrich quoted one of those experts, Chad Bowman, as saying it was “‘deeply troubling’ for a judge to force journalists to hand over unpublished materials when the plaintiff hadn’t yet made a viable legal claim.”

The last part of that statement is the key: Spofford has not yet presented the sort of evidence that would suggest he could win if allowed to proceed. St. Hilaire seems to be putting the cart before the horse. But if Spofford does have a viable case, then he’s entitled to gather the evidence he needs to pursue it. Remember, he needs to prove actual malice. That means it’s essential that he be allowed to probe the inner workings of Chooljian’s and NHPR’s reporting and editing processes to see whether they knew what they were broadcasting was false or if they harbored any serious doubts about it.

At one time libel had been regarded as what you might call a no-fault tort. That is, if you could show that you had been defamed with falsehoods, then you would win your case, regardless of the news organization’s motivation. In the 1974 case of Gertz v. Robert Welch, however, the Supreme Court ruled that even private individuals would have to prove negligence. With at least two members of the current Supreme Court, Justices Clarence Thomas and Neil Gorsuch, having suggested they’d like to revisit libel law, it’s worth thinking about whether negligence might be a better standard than actual malice, even for public officials and public figures.

The problem with actual malice has always been that though it makes it extremely difficult for a plaintiff to win a libel suit against the news media, it also gives the plaintiff entree into a news outlet’s private communications. Consider that, in 2005, The Boston Globe lost a libel suit brought by a doctor in the case of Betsy Lehman, a Globe reporter who died after receiving a massive overdose of a chemotherapy drug. In that case, the judge ruled that Dr. Lois Ayash won what turned out to be a $2 million judgment by default after the Globe refused to turn over its confidential sources, as the judge had ordered.

Ayash was entitled to that information, but there was no way the Globe was going to betray its confidential sources. If a negligence standard had been in effect rather than actual malice, then the jury could have determined whether the Globe had acted negligently without probing into its reporting processes.

So, too, with the NHPR case. The problem here, again, is that it’s not clear whether Chooljian reported anything that was false. Truth is almost always considered an absolute defense in a libel case, which is why Judge St. Hilaire seems to be acting prematurely. Nevertheless, the case is a good illustration of why actual malice — defined in the landmark Times v. Sullivan case in 1964 — may have been a mistake, and why negligence may be a more workable standard.

Why dark money in the Sarah Palin libel case could distort justice

Peter Thiel. Photo (cc) 2012 by Hubert Burda Media.

Jack Shafer asks an important question: Who is funding Sarah Palin’s legal battle against The New York Times? As Shafer observes in his new Politico Magazine piece, Palin’s legal team overlaps with the lawyers who represented Hulk Hogan in his lawsuit against Gawker. That effort turned out to be funded by Facebook billionaire Peter Thiel, who was aggrieved at having been outed by a Gawker-owned website. Shafer writes:

Nobody can criticize Palin for passing the hat to finance her case — if that’s what she did. Lawsuits are expensive and crowdfunding them without naming the funders is a time-honored practice — civil liberties groups do it routinely — and the practice is especially praiseworthy when the litigation is of the “impact” variety, designed to change the law and protect rights. But as the Gawker case demonstrated, such lawsuits can also be seen as punitive exercises, financed by a third party as payback.

The problem is that when lawsuits are funded by vast sums of dark money, they can have a distorting effect. Hogan’s invasion-of-privacy suit after Gawker published video of him having sex without his permission was certainly worthy of pursuing. But in the ordinary course of such matters, it would have been settled and life would have gone on. Instead, Hogan’s lawyers used secret Thiel money to push the suit all the way to its conclusion, with Gawker ultimately going bankrupt and shutting down. (The site has since been relaunched under new ownership.)

Unlike Hogan’s case, Palin’s libel suit against the Times is entirely lacking in merit. The Times published an editorial falsely tying Palin’s rhetoric to the 2011 shooting of then-congresswoman Gabby Giffords and the killings of six others. But there was zero evidence that the Times acted with “actual malice” (knowing falsehood or reckless disregard for the truth), which is the standard for public officials and public figures.

Palin’s suit shouldn’t have gotten as far as it did, and the devastating defeat she suffered this week ought to put an end to it. But if she’s backed by an endless stream of screw-you money, she can keep pushing, and perhaps get her case eventually heard by the U.S. Supreme Court — where Justices Clarence Thomas and Neil Gorsuch have indicated they’re prepared to overturn or pare back the libel standards that have protected the press since the landmark 1964 Times v. Sullivan decision.

Could Sarah Palin, of all people, be the catalyst who tears down libel protections for the press?

Sarah Palin. Photo (cc) 2021 by Gage Skidmore.

Previously published at GBH News.

For the past several years, a few conservative judges have been saying they’re ready to do what was once unthinkable: reverse the libel protections that the press has enjoyed since the 1964 New York Times v. Sullivan decision.

The threat began with Supreme Court Justice Clarence Thomas, who wrote in 2019 that he believed it was time to return libel jurisdiction to the states. It accelerated in early 2021, when Laurence Silberman, an influential judge on the U.S. Court of Appeals for the District of Columbia, called Times v. Sullivan “a profound mistake.” And it reached a crescendo of sorts last fall, when Supreme Court Justice Neil Gorsuch said that he, too, thought the time had come to revisit what has been settled law for nearly 60 years.

Soon an opportunity may arrive for Thomas and Gorsuch to act on their words — and it comes in the unlikely person of Sarah Palin, the former Alaska governor and Republican vice presidential candidate whose caustic attacks on “the lamestream media” presaged the Age of Trump.

Palin is suing The New York Times for libel, claiming that a 2017 editorial tying her incendiary rhetoric to the 2011 shooting of then-congresswoman Gabrielle Giffords — a crime that also claimed the lives of six people — was false and defamatory. Jury selection in the long-delayed trial had been set to begin this past Monday in U.S. District Court. Then we learned that Palin had tested positive for COVID-19. “She is of course unvaccinated,” said Judge Jed Rakoff. Yes, of course. And the proceedings have been delayed until Feb. 3.

There is no question that there were mistakes in the Times editorial, published after a gunman shot and injured several members of Congress, including U.S. Rep. Stephen Scalise. The Times compared the event to the Giffords shootings and noted that Palin’s political action committee had published a map on Facebook with gunsights over the districts of several members of Congress it hoped to defeat — including Giffords.

After that, things went awry. First, the editorial originally stated that the map targeted “electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.” In fact, the map targeted only the districts, not the members themselves. More consequentially, the editorial tied the map to the shootings, stating: “In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear.” (You can read the original Times editorial here, at the Internet Archive; the revised and corrected version is here. You can see the map here.)

There’s an old saying that bad cases make bad law, and this may prove to be a bad case. Palin may be an unsympathetic figure, but the Times is the epitome of an arrogant, out-of-touch institution — the very symbol of the liberal establishment. Worse, its editorial really did falsely claim that the Palin map led directly to the Giffords shootings. In fact, there is no evidence that Loughner, the mentally ill gunman, ever even knew about Palin’s ad.

So why does this matter? Under the Times v. Sullivan standard, Palin, as a public figure, can’t win her suit unless she is able to show that the Times acted with “actual malice” — that is, that it knew what it had published was false or strongly suspected it was false, a standard known as “reckless disregard for the truth.”

In fact, as Bill Grueskin wrote in an in-depth overview of the case for the Columbia Journalism Review last fall, there is more than ample evidence that the Times acted out of sloppiness, not venality. The then-editorial page editor, James Bennet, added the errors while he was editing the piece, apparently oblivious to the actual facts. (Bennet’s tenure came to an end in 2020 after he ran an op-ed by U.S. Sen. Tom Cotton calling for military force against Black Lives Matter protesters. It turned out that Bennet hadn’t even stirred himself to read Cotton’s screed before publication.)

The whole point of the Times v. Sullivan decision is to protect the media from libel actions brought by public officials and public figures on the basis of inadvertent or careless mistakes, which is what seems to be at issue in the Palin case. But will a jury see it that way?

A couple more points about the Palin case.

First, I haven’t seen much emphasis in pretrial coverage on the Times’ original description of the gunsights on Palin’s map as being over the members of Congress (suggesting that photos of them were used) rather than over their districts. It will be interesting to see how much Palin’s lawyers make of that once the trial begins.

Second, and more substantively, is that in order for a libel suit to succeed, the plaintiff must prove what was published about them was false and defamatory. And here’s where I find myself wondering how strong a case Palin actually has. The most significant falsehood in the Times editorial had nothing to do with anything that Palin or her PAC said or did; rather, it was the assertion that Loughner was incited to violence by the Palin map.

It remains an undeniable fact that Palin’s PAC published a map with gunsights over the districts of the 20 Democrats, accompanied by such belligerent rhetoric as: “We’ll aim for these races and many others. This is just the first salvo in a fight to elect people across the nation who will bring common sense to Washington. Please go to sarahpac.com and join me in the fight.”

Given that, how can Palin claim that the Times published anything false about her? What she did was mind-bogglingly irresponsible, and I’m not sure why it matters that her actions did not lead to any actual violence.

I put the question to a couple of First Amendment experts. One, Boston lawyer Harvey Silverglate, said that the Times’ (mostly) truthful description of Palin’s actions should cut against Palin’s libel claims. “Since the Times accurately described what Palin did,” Silverglate told me by email, “it would not matter whether it actually incited violence.

Taking a different view was Justin Silverman, a lawyer who is executive director of the New England First Amendment Coalition. “Just because Loughner didn’t use the map as motivation, [that] doesn’t mean that readers of the NYT weren’t told that he did — which arguably is the same as being told that Palin incited the violence and is responsible for that violence by publishing her map,” he said in an email. Silverman added: “By incorrectly saying that Loughner was motivated by the map, isn’t the NYT also incorrectly saying that Palin incited Loughner by publishing it?”

Nevertheless, Silverman said the Times should prevail if it is able to prove that its errors resulted from “sloppy journalism” rather than actual malice.

Which brings us back to where we started. Regardless of whether Palin wins her case, it seems likely that it will begin to wend its way through the appeals process — and perhaps to the Supreme Court.

Historically, conservative as well as liberal justices have supported strong First Amendment protections. But now we have two justices who appear ready to modify or overturn a vitally important precedent. And we are already seeing signs that the six conservative justices may be willing to overturn longstanding precedents such as Roe v. Wade, the 1972 case that guarantees the right to an abortion.

Powerful institutions are held to account by a powerful press. Without Times v. Sullivan, news organizations are likely to shy away from investigative reporting for fear of losing libel cases because of carelessness or unavoidable mistakes.

It would be a bitter irony if Sarah Palin, of all people, proves to be the vehicle through which the media are taken down.

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.

The Supreme Court’s vote to uphold the Texas abortion law is an affront to democracy

Photo (cc) 2006 by OZinOH

In analyzing the U.S. Supreme Court’s 5-4 vote not to overturn Texas’ drastic new abortion restrictions, a number of commentators have focused on the role played by the three justices nominated by Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

All three, needless to say, are wildly controversial. Gorsuch was chosen after then-Senate majority leader Mitch McConnell refused even to take up Barack Obama’s nomination of Merrick Garland, who’s now attorney general. Kavanaugh was confirmed despite serious and credible allegations of sexual assault. Barrett was rushed through before the 2020 election following the death of Ruth Bader Ginsburg.

But there is a more systemic problem, and that’s the failure of democracy that made last’s week’s decision possible. Trump, as we all know, lost the popular vote to Hillary Clinton in 2016 by about 3 million votes. He won only because the Electoral College, a relic of slavery, provides small rural states with disproportionate power. Yet he got to appoint one-third of the current court.

Moreover, all three of Trump’s justices were confirmed by a Senate controlled by the Republicans even though they represented fewer people than the Democrats. Gorsuch and Kavanaugh were confirmed during the first two years of Trump’s term, when the Democratic senators represented 56% of the population nationwide compared to the Republican share of 44%. That margin had narrowed slightly by the time Barrett was confirmed, but 53% of the population was still represented by Democratic senators compared to 47% by Republicans. (See my analysis.)

The other two justices who voted to uphold the Texas law were Clarence Thomas, appointed by George H.W. Bush, who was a majority president, and Samuel Alito, appointed by George W. Bush during his second term, which he won by a majority after losing the popular vote the first time around. But that’s just two votes. If Obama and Clinton had named three justices instead of Trump, it’s easy to imagine that the Texas law would have been suspended by a 7-2 vote. It’s just as easy to imagine that the Texas legislature wouldn’t have passed such a perverse and draconian law in the first place.

This is not democracy. Nor is it republicanism, since a properly designed republic is supposed to represent a majority of the electorate by proxy. It’s fair to ask how long this can go on before the majority stands up and demands an end to government by the minority.

The Supreme Court may be poised to weaken libel protections for the press

Photo (cc) 2005 by zacklur

Previously published at GBH News.

If we’ve learned anything about right-wing politics in the Age of Trump, it’s that what once seemed impossible becomes plausible — and then morphs into a new reality. We’ve seen it with the refusal to accept the outcome of a democratic election. We’ve seen it with attacks on face masks and vaccines. And now we may be seeing it with libel law.

For more than half a century, protections enacted by the U.S. Supreme Court have shielded the press by enabling journalists to hold the powerful to account without having to worry about frivolous libel suits. The 1964 case of New York Times v. Sullivan established the principle that a public official would have to prove a news organization acted with “actual malice” — meaning that the offending material was known to be false or was published with “reckless disregard for the truth.” That standard was later extended to public figures as well. The decision provided journalism with the armor it needed to report fearlessly, enabling stories such as the Pentagon Papers and Watergate.

It seemed impossible that this bulwark would fall when, during the 2016 presidential campaign, then-candidate Donald Trump promised to “open up libel laws” in order to make it easier for people to sue media outlets. And it seemed only slightly less impossible in early 2019, when Supreme Court Justice Clarence Thomas wrote an intemperate dissent arguing that Times v. Sullivan should be overturned in its entirety, returning libel law to the tender mercies of the states.

After all, the actual malice standard was enacted because the racist white power structure in the South had weaponized libel during the civil rights era as a way to intimidate the press. Surely Thomas’ fellow justices had no desire to return to those blighted days. Besides, a strong First Amendment appeared to be one of the few areas on which liberal and conservative judges agreed.

But weakening those protections began to seem more plausible several months ago when Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia praised Thomas — and joined his call to overturn Times v. Sullivan. Silberman threw a judicial tantrum, blasting what he viewed as liberal media bias and writing that “when the media has proven its willingness — if not eagerness — to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.”

Impossible. Then plausible. And, now, a glimmer of a potential coming reality: Earlier this month, Supreme Court Justice Neil Gorsuch joined Thomas in dissenting from a decision not to hear a case brought by the son of a former Albanian president against the author of a book who’d accused him of illegal gunrunning. Thomas’ opinion bristles with indignation and approvingly cites Silberman. Gorsuch, in turn, cites Thomas. But unlike Silberman and Thomas, Gorsuch’s opinion is all sweet reasonableness, discussing how much the media have changed since 1964 and asking, gosh darn it, why we shouldn’t acknowledge that social media, cable news and clickbait websites require a different approach to libel.

Arguing — correctly, I should note — that the actual malice standard allows media outlets to escape a libel judgment if they can prove they believed the defamatory falsehoods they published were true, Gorsuch writes: “It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy…. Under the actual malice regime as it has evolved, ‘ignorance is bliss.’”

Gorsuch’s conclusion oozes good intentions. “I do not profess any sure answers,” he writes. “I am not even certain of all the questions we should be asking. But given the momentous changes in the Nation’s media landscape since 1964, I cannot help but think the Court would profit from returning its attention, whether in this case or another, to a field so vital to the ‘safe deposit’ of our liberties.”

Gorsuch’s opinion relies heavily on an academic paper titled “Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan,” by David A. Logan, a professor at the Roger Williams University School of Law. Logan writes that actual malice has provided the media with “what amounts to an absolute immunity from damages actions for false statements,” which in turn has “facilitated a torrent of false information entering our public square.”

Logan’s examination of the data shows that libel judgments have plunged in the years since Times v. Sullivan, suggesting that the decision has created a nearly insurmountable obstacle to public officials and public figures who’ve been wronged. He suggests several possible remedies, such as narrowing the definition of a public figure or devising a system that would allow plaintiffs to “secure a judgment of falsehood in return for giving up a claim for damages.”

And he closes with the big one: getting rid of the actual malice standard altogether and replacing it with something easier to prove, such as “highly unreasonable conduct.”

Changes that result in fewer protections for the press make me queasy. But if the Supreme Court is serious about revisiting actual malice, then adopting something like a juiced-up negligence standard, as Logan proposes, wouldn’t necessarily be the worst outcome. Negligence is already the standard for private figures in most states, as laid out in the 1974 case of Gertz v. Robert Welch. It would certainly be better than overturning Times v. Sullivan altogether.

But remember: What seems impossible today may become reality in the not-too-distant future. Changes to libel protections that we had long taken for granted are starting to look inevitable, especially in the hands of a Supreme Court built by Trump and Mitch McConnell. Let’s just hope the justices don’t do too much damage to the press’ ability to hold the powerful to account.

Muzzle follow-up

Well, it happened. The 2021 New England Muzzle Awards, published on July 1, singled out former President Donald Trump for whipping up fears about race in the classroom. As I noted, New Hampshire was one of several states considering a ban on the teaching of “divisive concepts” about race and gender in public schools and in the workplace.

Trump won. Last Friday, the Portsmouth Herald reported that the ban was inserted into the state budget by Republican legislators, and Gov. Chris Sununu, also a Republican, signed it into law. Oyster River Superintendent James Morse called the new law “a fundamental affront to academic freedom in teaching in terms of teachers making decisions on how they apply the curriculum set by the school board.”

Making sense of Judge Silberman’s diatribe against libel protections for the press

Judge Laurence Silberman. Painting by Peter Even Egeli.

We are probably a long way from having to worry about the libel protections the press has enjoyed for the past half-century. But Judge Laurence Silberman’s attack on the landmark decision New York Times v. Sullivan is the second by a prominent conservative in two years — the first coming from Supreme Court Justice Clarence Thomas.

Josh Gerstein reported in Politico on Friday that Silberman, a senior judge who sits on the U.S. Court of Appeals for the District of Columbia, wrote in a dissent that the “actual malice” standard set forth in the Times decision was a “policy-driven” result with no basis in the First Amendment.

“The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication,” Silberman wrote, praising Thomas’ dissent in a 2019 case in which urged his fellow justices to return libel law to state jurisdiction.

I wrote about Thomas’ dissent for GBH News, so I don’t want to repeat everything here. But the Supreme Court hit upon actual malice as a way to stop the racist white power structure in the South from weaponizing libel law — that is, filing bogus libel cases against the press based on inconsequential errors as a way of intimidating Northern media outlets during the civil-rights era.

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Thomas and Silberman both claim there is something perverse about actual malice, but in fact it is a logical evolution of how libel law developed over the centuries. Originally, the only element to libel was defamation. The truth of a published item was not only irrelevant, but it was thought that “the great the truth, the greater the libel,” since truthful defamatory statements can be more harmful to someone’s reputation.

That was the basis of “seditious libel,” which was nothing more than criticism of the government. That notion began to fade away following the 1735 trial of John Peter Zenger, a printer whose New York newspaper had defamed the royal governor, William Cosby. A jury acquitted Zenger after his lawyer, Andrew Hamilton, persuaded its members that truth should be a defense in a libel case. It was an early example of jury nullification, as Hamilton’s argument had no basis in the law of that day. Gradually, though, truth came to be seen as perhaps the ultimate defense in a libel case.

Before Times v. Sullivan, libel was based on a two-legged stool — defamation and falsity. The decision added a third leg — fault. From that point on, public officials filing a libel claim would have to prove that the defamatory falsehoods published about them had been made with actual malice — that is, with the knowledge that they were false, or with “reckless disregard for the truth,” which later came to be defined as strongly suspecting that the statements were false.

There’s no question that this presents a high barrier for public officials. But it also gave the press the protection it needed to engage in high-stakes investigative reporting. As the late Anthony Lewis pointed out in his book “Freedom for the Thought That We Hate,” reporting on the Pentagon Papers and Watergate would have been much more difficult without Times v. Sullivan.

In the years following Times v. Sullivan, the standard was refined so that public figures would also have to prove actual malice; even private figures would at least have to show that the press had acted negligently.

Silberman’s dissent, by the way, is really something, drenched with grievances against the so-called liberal media. He writes:

There can be no doubt that the New York Times case has increased the power of the media. Although the institutional press, it could be argued, needed that protection to cover the civil rights movement, that power is now abused. In light of today’s very different challenges, I doubt the Court would invent the same rule

As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon…. The increased power of the press is so dangerous today because we are very close to one-party control of these institutions.

He goes on to call The New York Times and The Washington Post “virtually Democratic broadsheets,” and lumps in most of the rest of the press as well. (The Boston Globe get a shoutout.) He cites Fox News, The Wall Street Journal’s editorial page and the New York Post as exceptions, but adds “there are serious efforts to muzzle Fox News.”

I do not know what he’s talking about, unless he regards the mutterings of a small handful of Democratic members of Congress and media activists as “serious.” He also lambastes social media for cracking down on the right, disregarding the reality that those efforts have been aimed at eliminating falsehoods, not conservative opinions.

And as Washington Post media critic Erik Wemple pointed out, the conservative outlets cited as exceptions by Silberman surely are in need of actual-malice protections as much as others. (Fox and the New York Post more than most, I’d imagine.)

Silberman ends with this broadside:

It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. It may even give rise to countervailing extremism. The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness — if not eagerness — to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.

Fortunately, most conservative judges on the Supreme Court and elsewhere have taken at least as expansive a few of the First Amendment as their liberal colleagues. Thomas and Silberman would appear to be outliers. But freedom of the press is never guaranteed. This bears watching to see whether what is now a tiny flame somehow blows up into a conflagration.