Ari Paul, FAIR.org

FAIR (3/1/23) and other free speech advocates expressed concern when Republican Florida Gov. Ron DeSantis pushed for a bills that would redefine who a “public figure” is, thus challenging the longstanding Sullivan v. New York Times case that protects journalists from defamation lawsuits.

DeSantis is used to getting his way on most things these days, on everything from cloaking his travel records (NBC, 5/3/23) to taking over the state’s higher education institutions (AP, 4/26/23; Chronicle of Higher Education, 5/3/23). But not this time, as the New York Times (5/3/23) reports that the bills are hitting fierce opposition in the Florida legislature and is likely to fail.

The resistance came not from the liberals DeSantis loves to bash, but from the same right-wing media outlets that often support his administration. The reason? Efforts to intimidate liberal and centrist media by eviscerating the Sullivan standard would also impact right-wing media. The landmark case holds that public figures must prove that the accused acted with reckless disregard for the truth in order for a defamation case to hold up.

The Times:

“The minute conservative media outlets started catching wind of this it was stopped real quick,” said Javier Manjarres, the publisher of the Floridian, a conservative site that is usually supportive of the governor’s agenda. Last month, he wrote an article that said the legislation would be “an irreparable self-inflicted political wound” if Mr. DeSantis were to sign it.
“They were trying to hit the liberal media and didn’t realize it would be a boomerang that would come back around right at them,” said Brendon Leslie, the editor in chief of Florida’s Voice, a digital outlet that is favored by Mr. DeSantis. He and others worried that the legislation, if passed, would encourage lawsuits that could put many conservative publications out of business.

Reasons to be worried

Fox‘s $787 million settlement with Dominion (NBC, 4/18/23) was one of a number of high-profile libel payouts by right-wing media in recent years.

Such right-wing outlets have a reason to be worried, because even with the Sullivan standard, they have been vulnerable. Most famously, Fox News settled an enormous lawsuit with Dominion Voting Systems over the network’s false statements that the company helped fix the 2020 presidential election for Joe Biden (FAIR.org, 4/20/23). And who can forget Alex Jones’ legal troubles over his lies about the Sandy Hook shooting at Infowars (FAIR.org, 8/18/22)?

There are a few other affairs. A former US Department of Agriculture official “settled her long-running defamation lawsuit against the late conservative blogger Andrew Breitbart” (National Law Journal, 10/1/15). A “House information-technology staffer who became the center of fevered right-wing conspiracy theories about espionage and extortion” sued “the Daily Caller, alleging the conservative website defamed him and his relatives” (Daily Beast, 1/28/20).

The New York Post “settled a high-profile defamation suit over the paper’s infamous ‘Bag Men’ cover in the midst of the Boston Marathon terrorist bombing,” in which the paper ran a cover photo of two people in “attendance at the marathon” who “were holding bags in the picture,” thus tying them to the attack (Washington Post, 10/2/14).

Media clout on the right

Defending Fox against Dominion’s libel claims, William Barr (Wall Street Journal, 3/23/23) put in a good word for Sullivan.

The Dominion lawsuit against Fox, especially, rattled right-wing commentators, as even former Trump administration Attorney General William Barr took to the Wall Street Journal (3/23/23) to invoke Sullivan as protection for Fox. The setback for the DeSantis agenda demonstrates just how much influence the right-wing media have on policy; he’s not a random Republican, but a leading presidential hopeful, and the governor of a large state whose attacks on public institutions and gender rights are leading a nationwide movement. Democratic lawmakers are unlikely to check in with, say, MSNBC before deciding whether it’s safe to follow California Gov. Gavin Newsom’s political lead.

But if conservative legislators are reluctant to buck the media their voters rely on for political information, the urge to revisit the Sullivan case is still strong in conservative judicial circles (FAIR.org, 3/26/21), and it’s unlikely that will subside. The right’s broad agenda to crush labor unions and public education includes a decimation of media outlets that spotlight corporate and governmental misdeeds.

The New York Times (4/19/23) reported:

In recent court cases, Republican politicians suing the news media for defamation—including the former Senate candidates Don Blankenship and Roy Moore and the former congressman Devin Nunes—have explicitly pushed judges to abandon the Sullivan ruling.
Aside from trying to win their cases, the apparent goal was to present the Supreme Court with a vehicle to reconsider Sullivan.
“That is definitely the strategy,” said Lee Levine, a prominent First Amendment lawyer who, until his retirement, regularly represented the New York Times and other news organizations. “It will continue.”

Tearing down precedents

Justice Clarence Thomas (New York Times, 7/2/21) says we shouldn’t continue “to insulate those who perpetrate lies from traditional remedies like libel suits.”

The current Supreme Court conservative majority is certainly not shy about tearing down the liberal precedents set by the Warren Court. Floyd Abrams, one of the US’s most famous press lawyers, told the podcast So to Speak (2/23/23) that the judges who want to overturn Sullivan “are offended by…the press reportage about really public matters, which I think Sullivan was absolutely right about and has served the public well.” Floyd doesn’t believe the court has the five votes needed to undo Sullivan yet. But there are at least two justices—Clarence Thomas and Neil Gorsuch—that have their eye on the case, and possibly one or two more.

And next year’s presidential election could make a huge difference. “Former President Donald Trump and Florida Gov. Ron DeSantis, two favorites of many Fox News viewers, have advocated for the court to revisit the [Sullivan] standard,” AP (3/6/23) reported. The call to constrain press freedom is still ringing loud among right-wing voters.

Floyd said “if former President Trump were reelected and he got a chance…to appoint some more justices, sure, [Sullivan] would be at risk.”

Then–President Donald Trump's call to widen libel laws to make it easier to sue media outlets for defamation was, at the time, seen as one of his many political theatrical stunts, throwing red meat to his voting base (New York Times, 1/10/18). Following his lead, his supporters had long referred to the press as "fake news," sometimes using the Nazi expression lügenpresse, meaning "lying press" (Time, 10/25/16).

Corporate media covered it, but dismissed the threat. The Los Angeles Times (9/8/18) said we shouldn't worry, because "changing our libel laws is easier said than done," and CNBC (1/10/18) reassured that "experts say there is very little Trump could actually change about how libel laws work."

Slate (3/19/21): "Silberman has seemingly adopted the approach to judging taken by many Donald Trump appointees who treat opinions as opportunities to air their grievances about liberals."

But a dissenting opinion from the US Circuit Court of Appeals for the District of Columbia (Slate, 3/19/21) has breathed new legal life into the prospect of making it easier for political and corporate leaders to use defamation suits to stifle the press. The human rights group Global Witness had been sued by two Liberian officials it had accused of taking bribes from Exxon, but the court threw out the case, citing the landmark Supreme Court decision New York Times v. Sullivan, which held in 1964 that plaintiffs who are public figures must prove "actual malice" to win a libel suit.

Justice Laurence Silberman's dissent, however, is a sight to behold. He pontificates about an out-of-control liberal press and the anti-conservative bias of social media—standard Republican talking points—before ultimately declaring that Sullivan, which he insinuates is Communist-inspired ("a constitutional Brezhnev doctrine"), must be overturned.

It's easy to dismiss as someone using the winter of his judicial perch as the next best thing to a Fox News show, but Silberman is not a nobody. A Reagan appointee and Federalist Society member, Silberman has been accused of taking part of Ronald Reagan's "October Surprise" (Chicago Tribune, 8/18/89), an attempt to interfere in Iranian hostage negotiations to prevent President Jimmy Carter's re-election, and is infamous for overturning the conviction of Oliver North (New York Times, 7/21/90). He reportedly heaped on the attack against Anita Hill. He took up the Confederate Lost Cause last summer when he, as Slate reported, sent an email to colleagues "accusing Sen. Elizabeth Warren of seeking 'the desecration of Confederate graves,'" in response to her call for renaming "military bases that are named after Confederate officers." When a loyal soldato for the judicial right speaks, we should listen.

The idea of revisiting this precedent has been kicking around conservative circles for a while. Supreme Court Justice Antonin Scalia, the godfather of modern conservative legal philosophy, told the National Press Club (C-SPAN, 4/17/14; National Press Club, 4/21/14) that "the framers would have been appalled with the notion that they could be libeled with impunity," and that the justices who issued the ruling "were revising the Constitution." Justice Clarence Thomas suggested in 2019 that the decision and subsequent decisions based on it "were policy-driven decisions masquerading as constitutional law," prompting the libertarian Reason (2/19/19) to say "it's true that reconsidering New York Times v. Sullivan could lead to opening up our libel laws," but that it "doesn't follow that it's a bad and wrong thing to do."

Justice Clarence Thomas has indicated that he's ready to overturn a case seen as the foundation of modern First Amendment law (New York Times, 2/19/19).

Legal scholar Richard Epstein has been critical of the decision since the 1980s, and told the podcast We the People (10/11/18), "The difficulty with the actual malice standard is it traces too much on what the defendants thought," underemphasizing the "harm to the plaintiff's reputation, which in many of these cases can be quite devastating." He added that the actual malice requirement "was a radical departure from all pre-existing cases on the subject, and to my mind a mistake." Epstein told FAIR that the decision lets the press off the hook: "Sullivan lets false statements go unredressed no matter how much they do," he said, adding that a media outlet's "reputation should take a hit when they mislead their readers."

The actual malice standard is meant to protect speech, and especially speech from the common person used against those with power. Without this protection, political and business leaders, with their bottomless legal war chests, can simply use the threat of litigation to throw a chilling shroud over journalists and political activists. On the 50th anniversary of the decision, a New York Times editorial (3/8/14) called the decision "the clearest and most forceful defense of press freedom in American history," because it "rejected virtually any attempt to squelch criticism of public officials—even if false — as antithetical to 'the central meaning of the First Amendment.'"

Chad Bowman, the attorney for Global Witness in this DC circuit case, told FAIR that "New York Times v. Sullivan provides important 'breathing space' for lively discussion and debate on issues of public concern," and thus "is essential to a democracy." He added that we should

remember that the speech-protective legal standard is not limited to reporters at certain news organizations or members of a particular political party, but applies to all speakers.

That last part is key: Silberman was attacking the perceived partisanship of the press, but free speech protections are meant to apply across the political spectrum; if they're denied to one faction, they're effectively denied to everyone. And the First Amendment isn't just for journalists. Widening the application of defamation for powerful public figures will make it harder for the corporate press to cover state and corporate power, but will make it far more daunting for average people, who lack legal departments and libel insurance, to take part in public debate.

More than that, perceived partisan imbalance in the media isn't a reason to restrict free speech rights for everyone. Silberman thinks the press is too liberal. Readers of FAIR.org would more likely say the US press is too deferential to corporate and government power, but the answer to fixing that isn't more legal restrictions on those media outlets, but the creation of more independent media.

And Silberman brings up the idea that social media networks have a bias in terms of controlling what kind of media can be taken down or approved. People of all political stripes do see a problem with the power these few ubiquitous companies have (FAIR.org, 1/15/21), but the answer, again, isn't to have the government dictate how these private entities regulate speech. If you want a social media network that doesn't reflect private interests, then you need one that is owned by the public, like the US Postal Service.

Pew (1/13/21) noted that Trump appointed nearly as many appeals court judges in one term as Obama did in two.

With key right-wing jurists now on record calling for the overturning of this landmark ruling for freedom of the press, that the courts should undo this cornerstone of free speech, it's worth considering the right's grip on the federal bench. Pew Research (1/13/21) notes that "Trump appointed 54 federal appellate judges in four years, one short of the 55 Obama appointed in twice as much time," and that "more than a quarter of currently active federal judges are now Trump appointees." It's not a stretch to assume that this army of judicial ideologues, put in power by an administration whose goal was to use the federal judiciary to curb democratic liberalism, are familiar with Epstein, Silberman, Thomas and Scalia's arguments regarding New York Times v. Sullivan.

Obviously, First Amendment advocates need to be ready to defend against litigation aimed at empowering corporate and government honchos who want to quash their critics in the press. But there needs to be offensive action, too, and there's perhaps a way to unite the left-wing FAIR.org reader and the right-wing Silberman apprentice.

We might agree, for different reasons, that mass media fall short in serving its public purpose, and that social media networks are too powerful. But we could, theoretically, agree that the solution is the encouragement of more speech, through policies that allow for more community radio projects, funding for more local media and, in the case of social media, breaking up their monopoly status.

The struggle to preserve free speech cannot just be a defense of a precedent from the Civil Rights Era. There must be a 21st century manifesto for more media and more speech.