Conservatives Who Want To Weaken Defamation Standards May Regret Opening That Can of Worms

Last October, former President Donald Trump sued CNN (again) for defamation. Among other things, Trump argues that the news channel defamed him by describing his claim that Joe Biden stole the 2020 presidential election as “the ‘Big Lie,’ a concept tied to Adolf Hitler.” Trump thinks his lawsuit is the “perfect vehicle” for reconsidering Supreme Court precedents that make it difficult for public figures to win compensation for injury to their reputations.

Fox News, meanwhile, is counting on those precedents to protect it from liability for promoting the “Big Lie,” which implicated Dominion Voting Systems in a “massive fraud” that supposedly denied Trump a second term. Fox argues that Dominion cannot meet the “actual malice” test that the Supreme Court established in the 1964 case New York Times v. Sullivan, which requires proof that Fox either knowingly or recklessly aired false allegations against the company.

As that contrast vividly illustrates, the standard established by Sullivan and extended by subsequent cases cuts both ways even as applied to a very specific category of speech. It is an obstacle for Dominion, which objected to Fox’s amplification of Trump’s claim that the company helped Biden steal the election, and it is an obstacle for Trump, who objected to CNN’s characterization of that claim.

To put it another way, Fox and CNN both have reason to be thankful for the protection provided by Sullivan and its progeny, which applies regardless of which way a news source leans. Revisiting those precedents therefore poses a threat to speakers across the political spectrum. It is a can of worms that conservatives may regret opening.

Sullivan involved a full-page New York Times ad titled “Heed Their Rising Voices” that condemned “an unprecedented wave of terror” against civil rights activists in the South. That “wave of terror,” it said, included conduct by police, school officials, and private actors such as the would-be assassins who had bombed Martin Luther King Jr.’s home in Montgomery, Alabama. “Again and again,” the ad complained, “the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence.”

While the gist of that complaint was undoubtedly valid, the ad included several inaccuracies and exaggerations. Montgomery Police Commissioner L.B. Sullivan, who was not mentioned in the ad but argued that he had been impugned by implication, sued the signatories and the Times for defamation and won a damage award of $500,000 (about $4.8 million in current dollars), a verdict that was upheld by the Alabama Supreme Court. The U.S. Supreme Court unanimously overturned that judgment, concluding that Alabama’s defamation rules were inconsistent with the First and 14th amendments.

The majority held that the First Amendment requires “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’— that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” That rule was necessary, the Court said, to protect freedom of speech and the press from the “chilling effect” of a less demanding standard.

“Debate on public issues should be uninhibited, robust, and wide-open,” the Court said, and “it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” It may also include errors. “Erroneous statement is inevitable in free debate,” the majority said, and “it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need…to survive.'” When people criticize government officials, the justices said, “a defense for erroneous statements honestly made” is “essential.”

Three concurring justices thought that defense did not go far enough. As Justice Hugo Black saw it, the First and 14th amendments “completely prohibit” a state from awarding damages to “public officials against critics of their official conduct.” Justice Arthur Goldberg agreed that “the Constitution affords greater protection than that provided by the Court’s standard to citizen and press in exercising the right of public criticism.” Justice William O. Douglas joined both of those concurring opinions.

The Court later extended the actual malice standard to defamation cases involving “public figures,” including people who “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” It also said a plaintiff must show that the defendant “entertained serious doubts” about the truth of his statement.

Trump, a promiscuous plaintiff, does not like the implications of these decisions. While running for president in 2016, he famously promised to “open up those libel laws” so that aggrieved public figures like him could sue irksome critics and “win money instead of having no chance.” After Trump took office, he downgraded his vow to