BY EDWARD WASSERMAN
It seems safe to say that our flourishing online media routinely leave more people bruised and bloodied than any prior communication technology—more people than ever suffering personal disparagement, false allegations, character assassination, physical threats, and reputational sliming. Defamation, it seems, is booming.
Still, compared with lamentations over fake news and political bias, defamation doesn’t come up much in media criticism, even though it’s as common to social media as fraudulent solicitation is to email traffic. Actually, it doesn’t come up much in media ethics discourse either. If you skim a desktop full of academic texts you’ll find “defamation” among index entries only rarely—as if reputational harm isn’t a routine byproduct of journalism, one that deserves to be discussed with care and precision rather than treated as an outlying irritant that greater attention to accuracy would remedy.
This disregard for reputational harm isn’t confined to ethicists, it’s shared by our courts, and it didn’t start with the internet; what we’re seeing is not so different from how defamation has worked among the legacy media that today’s digital upstarts imagine they’re disrupting. Libel actions have all but disappeared. A New York Times lawyer wrote recently that the paper was sued for libel only 11 times between 2010 and 2017, and had not lost a libel suit for at least 50 years. The Media Law Resource Center found a steady decline in trials since the 1980s, from an average of 27 per year to three in 2018. Media defendants won about 40 percent of cases from 1980 to 2017, a proportion that climbed to 50 percent in 2017. On appeal, fewer than 1 in 10 awards that juries gave plaintiffs were upheld, and total damages were reduced 86 percent. Appellate courts threw out awards altogether in nearly 1 in 5 cases. As legal scholar David A. Logan concluded in a wide-ranging appraisal, “the threat that defendants today face from libel litigation is virtually nil.”
That now seems likely to change, although how soon and how radically isn’t yet clear. The February trial court defeat of a libel suit against The Times brought by former Alaska Gov. Sarah Palin over an error in an opinion piece sets her case on a glide path to the U.S. Supreme Court. There, two justices have already indicated they want to revisit the cornerstone of U.S. libel jurisprudence, the 1964 Supreme Court ruling known as Times vs. Sullivan, which set the standard that Palin’s case failed to meet and from which the basics of today’s media impunity derive.
It would be nice to think that the gathering campaign to revisit Sullivan is a response to the exuberant flood of digital defamation and a front in the reformist war on the stupendous industrial might of the giant online platforms. But as we’ll see, that’s not so. Restraining online excess is not the point. The anti-Sullivan forces want to use libel law to tame the press—which was precisely the purpose the Court sought to defeat more than a half-century ago when it issued the ruling. But it’s hard to deny that they raise legitimate questions as to whether the media culture that Sullivan and its offspring helped create—one that grants generous license to news media to get things wrong, even when others suffer as a result—isn’t ripe for overhaul.
Dissatisfaction with Sullivan has been gathering on the political right since at least January 2018 when President Trump denounced “our current libel laws” as “a sham and a disgrace.” A year later, Associate Justice Clarence Thomas wrote a solo concurrence critical of Sullivan, but he was largely ignored until March 2021, when D.C. Circuit Judge Laurence Silberman, a longtime GOP stalwart and mentor to Thomas, declared it was time to revisit the pivotal ruling. Silberman’s critique was widely reported, though reading his attack was like stepping on a dead bee—slightly painful but carrying little menace. But it seems the bee was only stunned, and in early July 2021 Silberman was cited approvingly in a pair of dissents, one written by Thomas and the second by fellow Justice Neil Gorsuch. So with two justices on the solid conservative majority now calling for change, there’s reason to suspect that defamation reform is stirring to life. If so, the challenge of recalibrating our formidable barriers to libel claims so that they make sense in the digital age may yet become the subject of vigorous debate.
Times v. Sullivan stiffened the legal standard that public officials must meet to win a defamation case. Not only must the offending article be false—under longstanding U.S. law there is no libel without falsity—it must also be the product not of mere negligence but of “actual malice:” That means the publisher either knew it was false or showed “reckless disregard” to evidence it wasn’t true. In his critique, Judge Silberman said that applying the “actual malice” standard cavalierly ignores 150 years of jurisprudence in which libel was handled under common-law principles strongly protective of one’s right to a reputation unsullied by damaging falsehood. Silberman then pivoted to a canonical broadside against “the ideological consolidation of the press” as irredeemably liberal, and asserted that freeing libel law from Sullivan’s shackles would demonopolize the news media. He didn’t say how that would happen (since it wouldn’t), but I admit to some glee in seeing a man of the right, which for decades has campaigned to curb lawsuits over everything from shoddy products to medical bungling, argue that what America really needs is more litigation.
Strange as it might seem, in an important way Silberman’s analysis was faithful to the logic of Sullivan, in that he too evaluated libel as chiefly a political and institutional challenge—not out of concern about how smeared civilians might be denied justice, but out of fear that defamation claims might muzzle the press. In Sullivan, the Supreme Court backed The New York Times in a face-off with segregationists in Montgomery, Alabama. The plaintiffs had been awarded $500,000—a state damage record at the time—for minor errors of fact in a paid Times advertisement published in 1960 that condemned local police for brutalizing civil rights protesters. The plaintiff, public-safety chief L.B. Sullivan, wasn’t named in the ad and never specified the damages he suffered. But he claimed people would know he was the target, identified factual errors, sued the Times, and won. Four years later, the high court reversed, 9-0.
Its ruling was solidly grounded in constitutional logic: Private lawsuits brought by officials claiming they were personally harmed by flawed reporting can be, as a practical matter, indistinguishable from efforts by the state to suppress criticism and sidestep the First Amendment’s core prohibition against restricting the press. Indeed, by 1964 some $300 million in libel suits had been filed by Southern officials against Northern media, and defamation was plainly being harnessed as a tool of governmental repression. (Silberman agrees that a potent threat of lawsuits would bridle the press, but believes that would be a good thing, since the press now has run wild in promoting lockstep leftist conformity.)
So the nexus between defamation law and political repression was at the core of Sullivan’s logic: To win a libel case, public officials would henceforth have to meet an exacting standard, essentially that the press knowingly lied. Mere reporting slipups won’t suffice; the press needs to be free to pursue the constitutional goal “that debate on public issues should be uninhibited, robust, and wide-open,” as Justice William Brennan wrote for the unanimous Court.
But Sullivan’s reach quickly broadened. Soon, its protections were no longer confined to reporting with an explicitly civic focus. The original ruling came on a case brought by “a public official against critics of his official conduct” (emphasis added), but within three years the Court extended its logic to apply not just to public officials, but to “public figures.” The pivotal pair of 1967 cases involved people with public import—the football coach of a state university, and a retired Army officer who supervised the campus response to anti-integration protests—people who were not public officials, but who, in Chief Justice Earl Warren’s words, “are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.”
The standard was moving toward shielding the press from answering for reputational harm suffered by just about anybody who has a reputation.
In time, people who were deemed as falling on the wrong side of the public figure/private person demarcation line—and hence would have to prove actual malice—were defined as individuals in the public eye, regardless of whether they had governmental authority or any explicitly civic role. In a series of cases, the Court found that people with prominence unrelated to governance would also have to prove all-but-deliberate falsity to win. With ecclesiastical ingenuity, courts offered categories such as “limited purpose public figures” or “involuntary public figures,” to cover people who had been drawn momentarily or unwillingly into the news. So it was that Richard Jewell, the security guard who sounded the alarm about the lethal bomb at the 1996 Atlanta Olympics, lost his case against The Atlanta Journal-Constitution, which pilloried him with belittling accounts that portrayed him as a stumblebum police wannabe who hungered for a moment of glory: He had lost his standing as a private individual—entitled to sue over mere negligence—because he had accepted interview requests from reporters.
That issue is what stuck in Justice Thomas’s throat when he authored his initial 2019 critique of Sullivan, which Judge Silberman saluted in his dissent. Thomas was commenting on a case brought by Kathrine Mae McKee, an actress who accused the entertainer Bill Cosby of raping her in 1974 when she was on tour with her then-boyfriend Sammy Davis Jr. Cosby’s attorney had responded to her accusation with a letter calling her a liar and, according to McKee, seeking “to embarrass, harass, humiliate, intimidate, and shame” her, and McKee sued for defamation. But courts found that because she was a “limited purpose public figure,” she would have to meet the exacting Sullivan standard, and that doomed her case.
The Supreme Court agreed, and so did Thomas, but he said he voted with the majority only because he had to apply Sullivan. In his concurrence, Thomas asked why that public/private determination should be required at all, and why it’s constitutionally necessary to make it “almost impossible” for a huge swath of citizens to sue for reputational harm. In McKee’s case, she qualified as a public figure because she had accused Cosby publicly and had later spoken to a reporter—and thereby “thrust” herself to the “forefront” of a matter of “public controversy.”
There are those who defend the logic of extending the Sullivan carve-out to, say, celebrities who are smeared in the media. It has been argued that people in the public eye have the capacity to command media attention to respond to defamation, so they are less disadvantaged by media libel and can refute harmful coverage. It’s also argued that the matters in which they figure often have broad public significance, like the coverage of governmental performance that Sullivan found warranted leeway for the press to stumble. Plus, courts have reasoned that a private person who courts public attention cannot then insist on protection when the notoriety they invited includes errors. That always struck me as very much like telling somebody who dresses expensively and fusses over their appearance that they have weak grounds to complain if someone throws mud on them.
Whatever the rationale, U.S. courts under Sullivan have edged closer to a sweeping determination that, in effect, since news puts people before a public audience, nearly anybody who cooperates in coverage—something we in the press encourage and depend on—relinquishes the right to demand elemental justice if the resulting coverage contains avoidable errors that hurt them.
And so to the internet. Does the near-immunity of news media from libel claims still matter at a time when the legacy press has shrunk and is overshadowed by social media? It’s encouraging that the platforms face pressure to control the expression of race hatred, genocidal incitement, child predation and the like, but we hear nothing comparable in respect to defamation. Justice Gorsuch’s own recent dissent criticizing Sullivan did raise the matter of online libel, and his observations about the vast societal danger posed by the flood of internet falsity were welcome. (Less welcome was his failure to mention, as he deplored the spread of fakery, the “stolen election” calumny sired by the president who put him on the bench.) Gorsuch, however, tried to make the case that the spread of untruths online is linked to Sullivan’s attempt to safeguard the ability of reporters to bird-dog officeholders zealously. The connection is bogus. Falsehoods that cause personal damage are a minuscule fraction of online falsity, which is a massive cultural and technological failure, not the work of professional journalists who cut corners because they think some jurisprudential loophole lets them. Nor, as Gorsuch suggests, does “actual malice” encourage editors to stop reporters from trying to verify stories out of fear that they might turn up discordant facts that, once ignored, could get them sued for “reckless disregard.” That plotline has zero empirical basis and, to anybody who has spent ten minutes in an actual newsroom, is ridiculous.
Modernizing defamation protections for the digital age will require measures to be taken at three institutional levels: by the courts, in revisiting Sullivan’s insurmountable burden of proof imposed on the very people most likely to be libeled; by Congress, in eliminating the legal carve-out created by Section 230 of the 1996 Communications Decency Act and restoring to the internet platforms the same obligation to police their operations to minimize harm that any business must shoulder; and by the platforms themselves, which need to step up and create nimble mechanisms to hear and redress claims of reputational damage inflicted through their channels.
Although it wouldn’t rid the internet of falsity, revisiting Times v. Sullivan makes sense. Journalism deserves freedom, not impunity. Banning meritorious claims from people slimed by shabby reporting simply because they have a public profile is indefensible on practically every level: It leaves them with unrequited injury, it creates a tolerance of falsity in the public sphere, it sends a message of “anything goes” to citizen-journalists who join the increasingly participatory world of public-facing discourse—and who should be encouraged to speak with honesty, fairness, self-discipline, and respect. Confining the “actual malice” standard to officials and others whose actions have genuine public impact, and allowing all others to argue that falsehoods were published and damage was done because reporters deviated from broadly accepted practices intended to ensure accuracy and care, need not undermine the First Amendment. Libel claims would be refocused onto assessing truth and harm, not arguing over the stature of the person who was wronged. Would there be more lawsuits? Some, but so what. Under our system of justice, people have rights and are entitled to seek redress. That’s why we have courts instead of dueling pistols.
Still, although those changes would have an exemplary influence, as a practical matter they would do little to square the immense and expanding circle of online harms. That’s because even if the legal standard were lowered, relatively few cases would ever promise damage awards sufficient to overcome the barriers to entry of our legal system and justify litigation. The challenge is more sweeping, and its colossal scale isn’t one that our, or anybody’s, courts can cope with.
Nor should they have to. Most defamation, though infuriating to the people involved, is minor. In the pre-internet days, facts were garbled, or somebody was misquoted or, more likely, quoted without crucial context; or they were not given a chance to answer accusations and now wanted the record set right and were furious because they couldn’t get anyone in the news organization to pay attention. By and large, their demands were modest: They wanted the error corrected, they wanted their good name restored, and they wanted an apology. Some may also have wanted compensation—though the money sought usually reflected the uncertainties of fact-intensive, long-shot litigation. But mainly they wanted to get on with their lives with reputation and dignity intact. I suspect that this remains true with today’s social media. People aren’t after much. They want to be heard, they want what’s fair, and they want it fast.
And right now, if the harm involves social media, they are out of luck. What’s needed is a broad and decentralized administrative justice system funded and operated by the platforms—once their Section 230 immunity is gone and they have no choice but to care—with resources commensurate with the challenge. It would match the scale and real-time agility of the platforms themselves, able to receive complaints, appraise them quickly, hear from the parties involved, and summon them to address the issues of fact or expression that gave rise to the grievance. The platforms perpetually describe themselves as online “communities;” this would be a genuinely community-based response, holding platform participants to account for postings that fail to uphold community standards of respect—for truth, for fairness, for each other. Although these tribunals would adjudicate, they wouldn’t be part of the judicial system, and they would be free to borrow heavily from the judiciary and apply the standards of defamation that seem most faithful to community principles. The sanctions they would exact would, accordingly, be confined to actions within the platform—compelling corrections, apologies, and behavioral reforms, and holding out the possibility of kicking offenders off if they defy the tribunals.
This would require major funding from the platforms, and fortunately, they have nearly inexhaustible funds to draw from, thanks to their astronomical revenues from online surveillance and informational pillage. Questions of how to staff this system of justice and how to ensure its procedures are fair—and are followed—wouldn’t be simple. But the alternative isn’t pretty. It’s watching, powerless and resigned, as damaging and fallacious content becomes normalized, and the democratizing potential of the platforms is stunted by the refusal of sensible people to risk being heard in such a treacherous space. It’s watching as the promise of community continues to decay into the reality of all against all. Halting that slide warrants a bold response.
Note: An earlier version of this essay appeared in the American Prospect on August 23, 2021.
- Edward Wasserman is professor of journalism and former dean of the Graduate School of Journalism, University of California, Berkeley. His website, Above the Fold, is at www.ewasserman.com.
- Image: OneSideProFoto / Shutterstock.com