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.