The Future of Actual Malice

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The Supreme Court building, Washington, DC

Justice Clarence Thomas poked the media industry this past June when he dissented from the Supreme Court decision not to hear an appeal of a libel case. The plaintiff, Coral Ridge Ministries, had sought a review of a lower-court decision turning down its suit against the Southern Poverty Law Center (SPLC). Justice Thomas’s dissent repeated a point he’s made for years: it’s time to overturn New York Times v. Sullivan, the decision that established the “actual malice” standard for defamation of “public figures.”

Coral Ridge Ministries is an evangelical organization. It sued SPLC because that venerable civil rights organization had put it on a list of “hate groups,” pointing to its anti-LGBT positions. Coral Ridge claims that it is not a hate group, that its positions are plainly “biblical,” and that SPLC’s listing harmed it because it made it ineligible to participate in the AmazonSmile program, in which buyers can designate a charity that Amazon will make a donation to.

There is no question that Coral Ridge was harmed by the “hate group” designation. But its case was weak. Calling it a hate group is an opinion; because there is no legal standard for the term, it can’t be proven false, no matter what you think about the Bible. But two courts also held that Coral Ridge hadn’t proven “actual malice.” Actual malice means that a statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” It is a standard that is applied only if the plaintiff is a public figure—and Coral Ridge agreed that it is a public figure.

Thomas’s dissent is a recruiting call for a case that can be used to overturn the actual malice standard. He says that it is not in the text of the Constitution, and that Sullivan was a policy-driven decision, wrongly decided. He is not alone. Justice Neil Gorsuch has also called for Sullivan to be reconsidered, saying it provides “an ironclad subsidy for the publication of falsehoods.” So, it could happen. Think Roe v. Wade.

Why News Organizations Care

New York Times v. Sullivan (1964) is part of the legal infrastructure of modern journalism in the United States. Justice William Brennen wrote the majority decision, which overturned a $500,000 jury verdict convicting the Times of defaming a segregationist Alabama official when it published an ad criticizing him that contained some inaccuracies. Brennen thought the inaccuracies were less important than the danger of a chilling effect on political discourse.

The danger posed by libel suits was a real one. Before Sullivan, it had been common for public figures to sue news organizations for defamation. At one point, the Chicago Times was dealing with two dozen such suits, including six from aldermen trying to litigate it into silence. Sullivan didn’t quite put an end to this kind of harassment, but it did make it far less likely to succeed.

Sullivan coincided with other legal developments that expanded the freedom of media organizations to publish critical material. The Pentagon Papers case (New York Times v. United States, 1971) made it far more difficult for the government to prevent publication on the basis of “national security.” The Freedom of Information Act (1967) established a process for forcing the government to release information. Coupled with the cultural impact of the Watergate scandal, these legal facts reinforced the institutionalization of what was seen as an adversarial press.

The major news organizations of the 1960s and 1970s thought they were powerful, responsible, and popular. In an age when few media companies had national scale—three broadcast networks, two wire services, three news magazines, and a handful of daily newspapers—it made sense that the law should recognize big media as a countervailing force to big government. The major news organizations considered themselves to be highly professionalized and claimed to hold themselves to high ethical standards. Journalists thought they deserved the protection that the actual malice standard offered.

But journalists were in for a rude surprise. Movement conservatives had already targeted news organizations as biased toward liberals. Joe McCarthy claimed they were staffed by communists. Richard Nixon put journalists on his “enemies list,” and his vice president Spiro Agnew dubbed them “nattering nabobs of negativity.” Though national journalists in the 1970s dismissed this populist criticism, by the 1980s—after Ronald Reagan restricted their coverage of the invasion of Grenada and there was no public outcry—they became concerned about a “credibility crisis.”

Around the same time, a relatively autonomous conservative media ecosystem began to appear. Conservative journals of opinion already had lavish backing, but in the 1980s, with the revocation of the Fairness Doctrine, conservative talk radio flourished. Shortly afterward the internet produced figures like Matt Drudge, and then cable TV started carrying Fox News.

Would We Be Better Off Without New York Times v. Sullivan?

The Right has the louder voice in the chorus calling to reverse Sullivan, but the Left sometimes sings along. Critics from the Left have little doubt which side would have more to lose if the media were held to a higher standard of truthfulness. They can point to cases like the suit against Alex Jones for defaming the parents of Sandy Hook victims or Dominion Voting’s defamation suit against Fox News—both of which have so far met the actual malice standard. Imagine if they weren’t required to prove actual malice. Think of all the county clerks suing Fox for spreading rumors about voter fraud.

The actual malice standard has allowed a lot of media misbehavior. But juries and common sense have already built some guardrails. Gawker invoked it when it was sued for emotional distress by a North Carolina teenager over a story reporting that she had been accused of flashing her vagina in a yearbook photo. Gawker lost then, and lost more famously when wrestler Hulk Hogan sued it for invasion of privacy over posting a sex tape. In that latter case, Gawker claimed correctly that Hogan was a public figure and that the published material was true. Still, it could not convince a jury.

No one disagrees that the media sphere is awash in falsehoods. But mainstream journalists, who cherish Sullivan, are not the ones responsible for the mess. They worry about a system in which courts try to adjudicate political truth. Their nightmare scenario runs like this: every time Trump calls something “fake news,” he also files a lawsuit. Moreover, because the federal standard has fallen, every state sets its own standard, and a litigant can shop around in a fifty-state marketplace.

A more hopeful scenario sees a new standard that is better suited to twenty-first-century media politics. Surely there must be a way to prevent lying with impunity. Perhaps such a standard could be paired with a reconsideration of Section 230 of the Communication Decency Act, which protects internet platforms from being sued for distributing questionable content.

Would you trust the current Supreme Court to formulate that new standard?


John Nerone is professor emeritus of Communications Research at the University of Illinois and the author of The Media and Public Life: A History.

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