George Freeman is executive director of the Media Law Resource Center. He was previously the in-house newsroom and First Amendment attorney for the New York Times. Lee Levine, a retired lawyer, served as managing editor of the MLRC report referenced in this column.
First, the past several years have seen a worrisome increase in libel lawsuits brought by a broad array of political candidates, elected officials and domestic corporate titans, not to mention foreign autocrats and oligarchs.
Second, despite this torrent of litigation, the Supreme Court might be poised to weaken constitutional protections for the news media — “opening up the libel laws,” as Donald Trump once urged.
Two justices have called for Sullivan to be reconsidered, and they might find takers among their colleagues. Justice Clarence Thomas wants to see the case overruled. Justice Neil M. Gorsuch has suggested that, given “momentous changes in the Nation’s media landscape,” Sullivan now incentivizes shoddy journalism and an “ignorance is bliss” mentality.
Reconsidering Sullivan and relaxing the “actual malice” standard imposed on public officials and public figures who claim they have been defamed would be a terrible mistake. The case was correct when it was decided; it remains equally correct — and at least as necessary — today.
A new report by the Media Law Resource Center (MLRC) underscores why. Gorsuch, in his 2021 call to revisit the case, cited statistics collected by the MLRC that showed a dramatic decline in the number of libel cases that went to trial since the 1980s.
That is correct but misleading. Gorsuch said these statistics confirm that the “actual malice” standard, under which public figures must show that news organizations acted with knowing or reckless disregard for the truth, had made the media all but “immune” from liability.
But Gorsuch’s argument ignores the dramatic decrease in all civil trials over the past several decades. In all civil cases, not just libel suits, trials have largely been replaced by settlements. Such settlements, including in libel cases, can reach many millions of dollars.
For the new report, MLRC collected data from 12 major news media companies about more than 200 libel complaints they collectively received since 2009. That data reveals no evidence that the number of media libel cases has decreased in recent years. Rather, it validates the perception of news media companies and their lawyers that the number of cases has increased. The total cases in just that sample rose from 74 to 115 in the period from 2016 to 2021 compared to the preceding six years.
In our experience, these cases are not typically intended to secure compensation for actual injury to reputation. Instead, they are intended to punish the media for speaking truth to power and to dissuade it from doing so in the future. And many of these cases are funded not by the allegedly aggrieved plaintiff, but by wealthy individuals and institutions with ideological or political axes to grind and scores to settle.
As for the contemporary “media landscape,” Gorsuch confuses the role played by social media platforms that act as distributors of content created by others, with the very different function performed by the news media. The ills that Gorsuch rightly condemns — the distribution of irresponsible and often dangerous misinformation — are not a creature of the press or of Sullivan, but rather of Section 230 of the Communications Decency Act, which does “immunize” online platforms from liability arising from the content they disseminate.
Make no mistake, but for Sullivan, libel lawsuits brought by powerful persons would — as William J. Brennan Jr. wrote in Sullivan — deter “critics of official conduct . . . from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so.”
This is an era where the number of news outlets has decreased dramatically, resulting in a reduction of coverage of local governments. The last thing we need is a greater disincentive to report about corruption in and negligence by local officials and institutions because of the threat of financially devastating libel suits arising from honest errors.
In short, what was true in 1964 remains true today: A libel law regime without “breathing space” for unintentional falsehoods will inevitably result in significantly less debate on public issues by an informed citizenry — the lifeblood of a functioning democracy.