Free Speech Supporters Shouldn’t Cheer These Libel Suits Over Election Claims

“First Amendment scholars” cheer against a free press? A strange piece in The New York Times—headlined “First Amendment Scholars Want to See the Media Lose These Cases“—delves into defamation lawsuits filed against Fox News, One America News, Project Veritas, The Gateway Pundit, and other right-wing media outlets. The suits accuse these publications of intentionally spreading false claims about voter fraud in the 2020 election and profiting from these claims.

To win, plaintiffs have to show that these outlets acted with “actual malice”—that is, deliberately spread misinformation or acted with “reckless disregard” for facts.

“The high legal bar to prove defamation had become an increasingly sore subject well before the 2020 election, mainly but not exclusively among conservatives, prompting calls to reconsider the broad legal immunity that has shielded journalists since the landmark 1964 Supreme Court decision New York Times v. Sullivan,” notes the Times.

Critics include politicians like former President Donald J. Trump and Sarah Palin, who lost a defamation suit against The Times last month and has asked for a new trial, as well as two Supreme Court justices, Clarence Thomas and Neil M. Gorsuch.

[First Amendment lawyer Lee] Levine said a finding of liability in the cases making their way through the courts could demonstrate that the bar set by the Sullivan case did what it was supposed to: make it possible to punish the intentional or extremely reckless dissemination of false information while protecting the press from lawsuits over inadvertent errors.

But finding that media outlets actually knew (or should have known) the election-fraud claims they aired were false is a tall order. When the president and some top Republican officials and lawyers were making such claims, is it really that off-base to think some in media might have truly believed them? Or at least found them worth reporting on credulously?

Even if you’re cynical about, say, Fox News staff being true believers in election-fraud narratives, it’s not outside the realm of possibility. And if the courts rule otherwise, that seems likely to weaken press protections across the board.

Remember, we’re not just talking about specific claims made by individuals who appeared on news programs. We’re talking about claims against the media outlets as a whole.

Fox’s lawyers argue that “the public had a right to know, and Fox had a right to cover” election fraud claims and that the network reported on them in a neutral manner in its straight news segments. As for guests that gave these rumors credence on opinion programs, “giving them a forum to make even groundless claims is part and parcel of the ‘uninhibited, robust and wide-open’ debate on matters of public concern,” the network’s lawyers say.

That’s true, whether you like the way Fox and other right-wing outlets covered Trump’s election fraud claims or not.

Supporters of free speech should be very wary of letting the courts decide that reporting on or sharing opinions about widely disputed events is illegal unless it tows a certain lin