New York Times v. Sullivan. It was a landmark Supreme Court decision holding that the First Amendment limits the right of public officials to sue media for defamation; to successfully sue, a public plaintiff must prove “constitutional” malice, meaning that the allegedly defamatory statement was made by the news media with either reckless disregard for the truth or the statement was known to be false.
It’s worth recalling that Sullivan came about when an Alabama police commissioner sued The New York Times for defaming him in a full-page ad it ran, criticizing how the local police handled civil rights protesters. The year was 1964; the ad had a few trivial inaccuracies.
An Alabama state court jury held the ad’s minor inaccuracies to be defamatory per se and awarded the plaintiff $500,000, an amount that no doubt was intended to chill any other journalist thinking of reporting news critical of a local official in Alabama. The Supreme Court reversed the Alabama court 9-0; its decision is a beacon for defense of freedom of the press and the media’s ability, subject to the court’s new definition of malice, to report the news regardless of whether the news might be offensive to some or that it might not be accurate.
Sullivan took from public figures a tool by which they could suppress criticism of their actions by the news media. And so it has been for nearly 60 years.
Perhaps until now. The Florida legislature has proposed two bills that have the backing of Gov. Ron DeSantis, each of which would eviscerate Sullivan’s protection of the media and entomb freedom of the press. If Florida passes one or the other, there is no doubt other states will follow.
These bills would make it much harder to report on what the government is doing, and intentionally make it harder to defend defamation suits brought against the press by politicians. One bill would require a court to find malice if the news media willfully failed to validate, corroborate, or otherwise verify the defamatory allegation, and thus would eliminate the fair reporting privilege that in most states allows a journalist to accurately report what was said or contained in a public record even if it turns out to be false and defamatory.
The anti-SLAPP (Strategic Lawsuits Against Public Participation) laws would also be struck by these bills if they become laws; no longer could a defamation defendant recover legal fees for defense of a frivolous suit brought by a public official.
One bill goes so far as to only allow a plaintiff to recover legal fees, encouraging litigation. The House bill even makes it defamatory to claim that a person is sexist, homophobic or racist based on the subject’s religious beliefs.
DeSantis recently complained that mainstream news media, like CNN, “are the leading purveyors of disinformation in our entire society.” He says these news reporters need to be held accountable through private lawsuits, although the change in the law would no doubt be challenged as government action intended to carve into the First Amendment to protect government actors from critical comment by the media.
One of these Florida bills is sure to become law, and no one can guess what this Supreme Court might do. Perhaps DeSantis wants a challenge before the Supreme Court to give the court an opportunity to revisit, modify or eliminate Sullivan. The slope is slippery, for sure, because other states will likely copy Florida’s efforts, and the environment in which the media operates will get hostile in those states.
The goal is to make the news media think twice before reporting on government conduct in an uninhibited, robust and wide-open manner. The result will be a diminution of reported truth, the ability to hold power accountable, and a lack of informed voters. That seems to be exactly what some politicians want.
Jim Astrachan is a partner at Goodell, DeVries, Leech & Dann, LLP and teaches Second Amendment law at the University of Baltimore Law School, as well as at other colleges and universities. The views he expresses are his own.