Lies, Damn Lies and Kamikaze Lies: Protecting Falsehoods in the Name of Truth

Abstract

Despite calls to reverse New York Times v. Sullivan and abandon the reckless disregard standard for public figure defamation cases--calls offered by two Supreme Court Justices, a number of legal scholars and some members of the popular press-- this article demonstrates that Sullivan’s protections have never been more relevant or more necessary, particularly in light of an epidemic of malicious, often strategic falsity, as well as overt assaults on the institutional press by powerful actors. We need Sullivan now more than ever. Further, for Sullivan to do its work effectively, it must be reinforced by two other legal protections: robust Anti-SLAPP statutes and revival of the neutral reportage privilege.

Critics claim that Sullivan gutted defamation law, leaving those whose reputations are damaged by defamatory falsehoods with no remedy. This wildly overstates the case.

Sullivan’s reckless disregard standard applies only to public figures involved in matters of public interest. Private plaintiffs are not subject to its high threshold. While the Court did find that the constitution places modest requirements on private plaintiffs’ defamation suits, it did so with a light touch. The Court held merely that private plaintiffs must prove each element of defamation by a preponderance of the evidence, the same burden of proof required of virtually all other tort plaintiffs, eliminating common law plaintiff-favoring presumptions.

As for the requirement that public figures prove that the defendant acted with knowledge of falsity, or reckless disregard for the truth or falsity of the publication, the Court did set a high bar, but found that such protection was essential to ensure the robust debate that forms the bedrock of a democratic society. Public figures do face a daunting hurdle in bringing defamation actions, and some public figures with legitimate claims may not be able to clear that hurdle. But they are not left remediless. As Gertz explained in distinguishing public figures from private figures, public figures have significantly greater access t a defamation plaintiff’s first defense—self-help--by virtue of their access to many channels of communication. Anthony Lewis sums it up: a public figure’s “recourse is not litigation but rebuttal.” On balance, the trade off is worth it.

The reckless disregard standard does much to limit meritless litigation. And it is the threat of litigation—specifically meritless suits—that poses serious risk, especially in the current climate. “[T]he feature of defamation law that most effectively allows plaintiffs to weaponize claims against media organizations is the high cost of litigation.” High-profile figures declare war on the institutional press, using the threat of baseless defamation suits as a potent weapon in that war. Former President Donald Trump brags about this saying about one suit, that he knew he “couldn’t win the suit, but brought it anyway to make a point,” noting that it cost his target, a business reporter, a great deal of money. This echoes exactly what was going in when Sullivan was decided—the historical backdrop that set the stage or the Court’s decision.

At the time the Sullivan case was decided, the civil rights movement had spread throughout the South, and was meeting with violent backlash. The national press the lead in telling the story, drawing the ire of segregationists who viewed the press, especially the national press, as insinuating itself into matters that were none of its business. This ire spawned a strategy of filing libel suits against the national news outlets, seeking staggering sums in damages. One Alabama editor, infuriated by the ad that spawned the Sullivan case, wrote an editorial entitled “Lies, Lies, Lies” in which he “‘invited everyone in Alabama to sue the New York Times.’” Celebrating the state court verdict in the Sullivan case, another Alabama editorial explicitly reveled in the fact that the huge verdict would cause the “Northern press” to rethink publishing “‘anything detrimental to the South’” and yet another, under a headline that exclaimed “‘State Finds Formidable Legal Club to Swing at Out-of-State Press,’” celebrated that local officials now had a “‘ legal bludgeon to swing at out-of-state newspapers whose reporters cover racial incidents in Alabama.’” These statements dropped any pretense and invoked defamation suits as a weapon to crush press coverage. Former President Trumps boast echoes this strategy.

We need the Sullivan standard now more than ever, but the Sullivan standard can’t do the work alone. Rather it must be combined with robust Anti-SLAPP statutes that allow early dismissal of meritless cases and provide the prompt and reliable award of attorney’s fees for the successful movant to neutralize the strategy of bringing meritless suits.

Further, in an era where blatant, often almost laughable falsity has gained a stunning foothold, another doctrine, the neutral reportage privilege, should be revived to allow such falsity to be called out. In defamation law, the repeater of a defamatory statement is just as liable as the originator, even if the repeater states their belief that the statement is not true. Indeed, qualifying a false statement with the comment that “we don’t believe it” confesses judgment on knowledge of falsity—thus clearing the stringent Sullivan threshold. But sometimes, especially now, the very fact that someone said something wildly untrue and unfounded itself constitutes crucial information that should be reported. This is what the neutral reportage doctrine addresses. It neutralizes the repeater rule when the republication of false information is done for the very purpose of exposing the falsity and exposing the speaker. As such, the protection it provides allows speakers to call out falsity without fear of liability.

Together, the Sullivan standard, strong Anti-SLAPP statutes and the neutral reportage doctrine can provide potent weapons protecting speakers who call out those in power, especially for the spread of malicious falsity.