Five years ago, it was easy to laugh off the nonsensical campaign pledge by then-candidate Donald Trump to “open up” the libel laws, so that when The New York Times, Washington Post, or any other outlet ran stories he didn’t like, “we can sue them and win money instead of having no chance of winning because they’re totally protected.”
Things don’t seem so funny now, after last week’s call by two US Supreme Court justices for the court to revisit a bedrock libel law ruling that has protected the free press for more than half a century.
Such a move would not only embolden those, like Trump, who try to bury free speech under a pile of expensive litigation, it but it could also make the very legitimate concerns about widespread disinformation in a rapid-fire social media age expressed by one of those jurists, Justice Neil Gorsuch, worse not better.
The Supreme Court has a long record of staunchly defending First Amendment free speech protections, be it the right of a newspaper to publish papers revealing government lies about the Vietnam War or a cheerleader’s right to use foul language on Snapchat.
Few cases embody the principle of the First Amendment’s prohibition of government actions “abridging the freedom of speech, or of the press” more than New York Times v. Sullivan, the very case Gorsuch suggests is out of date. That decision and its progeny created an “actual malice” standard for libel suits brought by public officials and other well-known public figures or those who insert themselves in public controversies. Those figures must prove alleged defamatory statements are not just false, but also that they were either known to be false or made with reckless disregard for their veracity.
A unanimous Supreme Court held in 1964: “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount — leads to a comparable ‘self-censorship.’ ”
Moreover, Justice Hugo Black noted in his concurrence that the lawsuit at issue, filed by an Alabama police commissioner based on an ad civil rights leaders placed in the Times criticizing police treatment of student protesters, was part of a campaign threatening “more such huge verdicts lurking just around the corner” for media outlets that “dare to criticize public officials.”
But Gorsuch, in a dissent to an order by the court declining to take up a libel case last week, signaled that he thinks times have changed.
“Now, private citizens can become ‘public figures’ on social media overnight,” Gorsuch lamented. “Individuals can be deemed ‘famous’ because of their notoriety in certain channels of our now-highly segmented media even as they remain unknown in most.”
As a former plaintiff-side litigation attorney, trust me, the answer to this problem is not more lawsuits. Even meritless suits force news organizations to burn resources that most outlets — particularly small ones without inexhaustible finances or libel insurance coverage — do not have.
It’s not a theoretical concern. Consider PayPal cofounder Peter Thiel, whose campaign to bring down Gawker took the form of funding the lawsuits of “victims” who were also the subject of the online website’s coverage. A verdict in favor of Hulk Hogan in a lawsuit backed by Thiel over a leaked sex video accomplished that goal: Gawker folded.
But Sullivan’s public figure standard gives courts both the guidance and the discretion that they need to tackle the thorniest of cases. Gorsuch is right — Instagram stardom can be fleeting. But in a libel case, Sullivan allows the impact of that fame can be limited based on its duration and reach. Will it always be easy? No, but making tough calls are what judges do.
Gorsuch’s approach would not only be futile in fighting the online disinformation that comes from anonymous online posters outside the reach of civil complaints, but it would also be hailed by Trump and his supporters as proof of his baseless campaign claims and would fuel the very conspiracy-mindedness and erosion of public trust in the press Gorsuch warns against.
According to a Gallup poll, 6 in 10 Americans already have little or no faith in the media to report the news “fully, accurately, and fairly.” The former president surely can take some credit for that. The Supreme Court shouldn’t make it worse.