Is the Actual Malice Standard On the Chopping Block? Legal Insight from Courtney Forrest
Courtney Forrest is a partner at Kaiser PLLC, where she represents clients in matters involving the First Amendment and white-collar criminal defense. Her work includes representing individuals and businesses in defamation cases, giving her a front-line perspective on the critical balance between combatting misinformation and freedom of the press. Below, Courtney reviews Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful, a new book by New York Times journalist David Enrich.
“[T]he freedom of the press is important in our society, it’s critical in our society, even though individuals may at times be hurt by the use of that right. . .[I] have no agenda to change the [Sullivan] standard. . . [W]e should protect our First Amendment freedoms as much as possible.”
Do you know which of the current Supreme Court justices said that at their confirmation hearing? I suspect you will need more than three guesses. Believe it or not, it was Clarence Thomas, back in 1991 – before Anita Hill came forward with her accusations of sexual harassment.
Now fast-forward to 2019. In his dissenting opinion from the Court’s denial of certiorari in McKee v. Cosby, Justice Thomas revealed precisely the agenda he once disavowed. He explicitly called on the Court to find a case that would allow it to reconsider its landmark decision in New York Times v. Sullivan.
In his new book, Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful, David Enrich presents the captivating narrative of how and why a conservative legal movement—including but certainly not limited to Justice Thomas—has rallied momentum over the last decade to overturn Sullivan and make it easier for the powerful to sue the press over critical coverage. Enrich characterizes this as an existential threat to journalists, press freedom, and even democracy itself. (Though, thankfully, I am not convinced that this is likely to happen any time soon. More on that later.)
The Origin and Impact of Sullivan
For those of you who aren’t First Amendment gurus, Sullivan is the 1964 Supreme Court decision that established robust protection for the press when writing about public officials. It arose from a full-page ad in the New York Times listing ways in which southern officials were responding to Martin Luther King Jr.’s civil rights efforts peaceful protests with “intimidation and violence.” The gist of the ad was true, but some details were exaggerated or wrong. L.B. Sullivan, a white supremacist and city commissioner in Alabama, sued the Times, seeking to intimidate it into backing off its coverage of southern opposition to the civil rights movement. Sullivan, and peers who filed similar suits, tried to delegitimize the media as lying propagandists and “Commies” trying to indoctrinate and brainwash gullible readers.
At the time, it was relatively easy for plaintiffs to win libel suits because there was a presumption that what the defendant had written was false and it had the burden of proving otherwise. Sullivan prevailed at trial and was awarded $500,000. Many more libel suits against the media followed, seeking hundreds of millions of dollars in 1960s money. This made it too financially perilous for major newspapers to write about divisive political issues.
The Times appealed to the Supreme Court, which unanimously found that Alabama had violated constitutional protections of free speech and free press. It reasoned that erroneous statements are inevitable in free debate, and media needed breathing space to engage in that debate without worrying that an honest factual mistake could lead to financial ruin. Going forward, the Court ruled that public officials bringing libel suits could not collect damages unless they proved that the statement at issue was made with “actual malice” – either knowledge that the statement was false or a reckless disregard of whether it was false or not. In other words, deliberate smears were still actionable, but accidental errors were not. (The “actual malice” standard was later extended to “public figures” in Curtis Publishing Company v. Butts and to “limited purpose public figures” in Gertz v. Robert Welsh Inc.)
For decades, the Sullivan decision was largely praised and credited with ushering in what Enrich describes as a “new age of American journalism devoted to exposing malfeasance, questioning authority, and promoting the public interest.” He notes that in the years shortly following Sullivan, reporters uncovered wrongdoing in Vietnam, the White House, and the Pentagon, as well as in the tobacco, auto, and chemical industries. Enrich credits Sullivan with empowering journalists who were making a “good-faith effort to ascertain the truth” to “dig into the rich, famous, and powerful.”
The Conservative Campaign Against Sullivan
In Murder the Truth, Enrich points to Donald Trump’s first presidential campaign as the starting point of the ongoing conservative movement to overturn Sullivan. At a 2016 rally in Texas, Trump called the media “dishonest” and “terrible,” and then claimed that if he won, he would “open up our libel laws, so when they write purposefully negative and horrible and false articles, we can sue them and win lots of money. . . we’re going to have people sue you like you’ve never got sued before.” Although the actual malice standard allowed plaintiffs to recover for intentionally false stories, that nuance did not seem to matter to Trump, who was already hostile to the media and frustrated by his lack of success seeking retribution against his critics. (Enrich notes that as of that date, Trump had threatened many libel suits and filed seven. He won one when the defendant failed to appear and lost the other six.)
In addition to Trump’s consistent attacks on the press, both before and after his election in 2016, Enrich chronicles the rise of several lawyers and law firms who specialize in pursuing defamation suits against the media for rich and powerful clients. These include Tom Clare, Libby Locke, and Charles Harder. Libby Locke in particular is a prominent voice arguing that Sullivan should be overturned; she has made frequent public appearances contending that the actual malice standard incentivizes reckless reporting because the media has little fear of losing a lawsuit.
Murder the Truth discusses all of the major libel cases of the last ten-to-fifteen years, from Nicole Eramo’s suit against Rolling Stone over the retracted “A Rape on Campus” article, through the “case of the century,” Dominion Voting Systems v. Fox News Network. But the book is much more than a summary of judicial decisions. Each case is discussed in the context of the political, cultural, and academic trends surrounding it. In the Author’s Note, Enrich states that he tried to talk to everyone featured in the book, and that diligence really shows. The time he spent talking to each of the parties and attorneys involved in the major events discussed in the book has produced a narrative that is engaging on a human level and equally appealing and understandable to both lawyers and non-lawyers.
Enrich’s narrative builds to the Berisha v. Lawson case in 2021. There, the plaintiff specifically asked the Court to decide “whether this Court should overrule the ‘actual malice’ standard requirement it imposed on public figure defamation plaintiffs.” Although the Court declined to hear the case, both Justices Thomas and Gorsuch dissented. For the first time, a second Justice had joined the anti-Sullivan chorus. Following the Berisha case, the conservative movement to overturn Sullivan was reinvigorated. People and organizations such as the Heritage Foundation, Federalist Society, Claremont Institute, Ron DeSantis, and Alan Dershowitz all have advocated publicly for the issue. And Trump’s continued hostility to Sullivan is in lockstep with his recent efforts to suppress criticism of him and viewpoints contrary to his own.
Is the Sky Really Falling?
Though I largely agree with Enrich’s central premise that overturning Sullivan would be a disastrous rollback of press freedom and impair the ability of news media to report on issues of public importance, (thankfully) I was not convinced that this outcome is as likely as Enrich leads the reader to believe.
First, as of today, only two Justices, Thomas and Gorsuch, have expressed support for overturning Sullivan. It’s a long way from two votes to five, and in my opinion, neither Thomas’s nor Gorsuch’s reasoning is likely to win over their colleagues. Though Thomas pointed to real-world harm that has resulted from falsehoods published online, Enrich correctly notes that Thomas did not explain how Sullivan could be responsible for conspiracy theories that proliferate on social media, rather than in traditional news outlets. For his part, Justice Gorsuch adopted a shaky theory presented in a law review article by a law professor named David Logan (and in the press by Libby Locke): That the actual malice standard has caused news outlets to adopt an “ignorance is bliss” approach, whereby “publishing without investigation, fact-checking, or editing has become the optimal legal strategy.” As Enrich notes, Logan’s article presented no evidence that any news outlet has actually taken that approach; in Enrich’s experience, journalists generally expend incredible efforts to get their stories right, which rings true to me. Gorsuch also pointed to statistics in Logan’s article purporting to show that since Sullivan, very few libel cases go to trial, and of those that do, only a small percentage of awards are upheld on appeal. However, the statistics in Logan’s article supporting these arguments were misleading. The Media Law Research Center, the source of the figures Logan used, wrote to Gorsuch shortly after the dissent was released and urged him to amend it, which the Court did.
Second, the recent success of progressive groups using libel suits to combat conspiracy theories and disinformation has demonstrated that the actual malice standard is not insurmountable. In the Dominion case, Clare Locke and its co-counsel reached a settlement with Fox News for $787.5 million. Atlanta election workers prevailed in their defamation suit against Rudy Guiliani; the families of children killed at Sandy Hook Elementary School were awarded nearly $1 billion in their suit against the conspiracy theorist, Alex Jones, who had called the shooting a hoax; and a postmaster in Pennsylvania settled his case against Project Veritas, which admitted that it had wrongfully accused him of tampering with mail-in ballots.
To Enrich’s credit, he is upfront about his own biases. In the first page of the book, he acknowledges: “I am biased. I’ve been a journalist my entire adult life.” So, although I found the tone of the book overly alarmist at times, that is an easily forgivable flaw. Overall, it was a thorough, enlightening, and highly enjoyable read.
