Time to End Media's Immunity to Rightful Defamation Claims
As America contends with the Supreme Court’s decision overturning Roe v. Wade, another important case is being rightfully challenged.
That challenge, reflected in a new petition before the Court, Coral Ridge Ministries Media v. Southern Poverty Law Center, concerns the landmark case of New York Times v. Sullivan, decided in 1964. Back then, the Court held that unless “actual malice” and “calculated falsehoods” could be proven, the media should be shielded from defamation lawsuits. Sullivan declared that public officials must prove that the defendant knowingly published a falsehood or acted with reckless disregard of truth. The doctrine was later extended to public figures, a category that includes celebrities, business leaders, and others.
Supporters of the decision call it a watershed, which ensured proper protection of press freedom.
Critics like myself consider Sullivan a dam-break disaster, after which the press was free to flood the country with the sewage of irresponsible reporting that these days, includes smear campaigns that often target private citizens. Sullivan’s critics maintain that the rule it established is inconsistent with the original understanding of the Constitution and that it needs updating. We might consider some prominent defamation cases in which private citizens suddenly found themselves in the spotlight of Sullivan-enabled defamatory publicity. The cases of Richard Jewell, Nick Sandmann, and Kyle Rittenhouse fall into this category. In the first two cases, the victims received compensation, but only after grueling years of jousting with an incorrigible system. And we’ll have to see about the third case, that of Kyle Rittenhouse. Having been jerked around by fundraising platforms, Rittenhouse is still trying to fund his defamation claims. Meanwhile, big media outlets can afford white-shoe lawyers and have SLAPP motions and the Sullivan public figure threshold to shield them from liability.
Another case to watch is that of talent agent Ariadna Jacob, who last year sued New York Times reporter Taylor Lorenz for her salacious reporting that portrayed Jacobs as devious and manipulative. Lorenz is now at The Washington Post, a powerhouse media platform controlled by tech billionaire Jeff Bezos.
One notable critic of Sullivan has been Senior Judge Laurence Silberman of the D.C. Circuit Court of Appeals. In March 2021, Silberman wrote that the “actual malice” standard of Sullivan wrongly elevates contemporary media — which now includes tens of millions of people, not just newspapers and TV stations — beyond the checks and balances of our democratic institutions and civil society.
Last year, dissenting from the denial of a hearing in a case called Berisha v. Lawson, Justice Gorsuch invoked “momentous changes in the Nation’s media landscape since 1964,” as his reason to challenge Sullivan. He added that the definition of actual malice has evolved from “a high bar of recovery into an effective immunity.” Even worse, as Sullivan has played out, journalists are perversely incentivized to avoid investigating their stories so that they can plead ignorance should they be ever sued for defamation.
At the same time, Justice Thomas wrote alongside that Sullivan is one of many cases showing how it and “its progeny have allowed media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’” Therefore, we can see: Sullivan was a case for a different time. “Journalism” that consists of social-media droppings gives us ridiculous examples of “freedom of the press” such as the crazed “Pizzagate” conspiracy theory, spread mostly online, anonymously. Pizzagate falsely claimed that certain emails contained secret messages that tied a number of high-ranking Democrats and U.S. restaurants with an alleged child sex ring.
Justice Thomas further argued that that the constitutional foundations of Sullivan are dubious and ought to be considered more closely. This is not only an argument from the right: If the Court were to follow Democrats’ demand to overrule yet another case, Citizens United, from 2010, the Court would be rejecting the notion that corporations have First Amendment rights. Such a ruling would further undercut Sullivan, as that case gave companies special rights for defending themselves in defamation cases.
Coral Ridge Ministries Media v. Southern Poverty Law Center involves a Christian ministry that objected to its placement on the Southern Poverty Law Center’s “Hate Map,” which purports to track hate groups across the country. The new case relied heavily on Justices Gorsuch’s and Thomas’ separate opinions, as well as a law review article that then-professor Elena Kagan wrote in 1993, expressing misgivings about Sullivan’s effects on press norms. Ergo, the Coral Ridge Ministries petition hoped to finally apply the "rule of four" to Sullivan, whereas previous appeals have fallen short.
Challenging Sullivan is important. Media companies should not be empowered to invoke the public figure defense unless their target is truly a well-known politician, a captain of industry, or a Hollywood celebrity. The current definition of a public figure is too broad. Moreover, when legacy media lies and publishes false stories with impunity, twitter trolls and smear sites are emboldened. Legacy media leads by example. And its journalistic malpractice creates outright malevolence. I have been a target of it myself. In 2018, several unknown “journalists” made arrangements with Twitter-based hate groups and attacked me, publishing false stories to suggest that I may be somehow tied to Trump Russia scandals. I wrote about this in The Wall Street Journal, Newsweek, and other publications. If it can happen to me, it can happen to anyone. We should protect what remains of our social fabric by strengthening the right not to be falsely attacked, canceled and trolled.
Second, the Sullivan decision sets the foundation for another controversial law, namely, Section 230 of the Communications Decency Act of 1996. The notorious Section 230 created a cottage industry of smear sites that masquerade as public forums for anonymous complaints. These one-percenters of the internet destroy reputations and careers, and often work closely with purported “reputation fixers” in a carefully orchestrated online extortion racket.
Supporters of Sullivan cite rare cases in which shady billionaires can no longer sue journalists to stifle free speech. But they never bring up the real toxicity that Sullivan has permitted. Media defense lawyers and lobbyists never mention the ordinary people who, by virtue of their role in, say, the Rotary Club, are deemed to be public figures, and ostensibly banned from defending their dignity in court when they are smeared by the press.
Of course, we should protect free speech, a free press and the First amendment. And yet free speech and media speech can never be absolute. Victims, too, have rights, and so do the vulnerable. And that could be you.
Yuri Vanetik is an American lawyer, investor, and political strategist. He is Lincoln Fellow at the Claremont Institute.
