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For well over 50 years, the Supreme Court’s New York Times v. Sullivan decision has governed the principles applied by the courts when assessing any claim of defamation.  That standard requires that, to find a statement about a public figure to be defamatory, not only does the statement need to be false, but it also needs to have been conveyed with “actual malice.” The Sullivan decision generally defines actual malice as writing or publishing an incorrect harmful statement knowing that the statement was false, or with reckless disregard as to whether the statement was true or not.  See our articles here and here, on this standard.  Because of this standard, the vast majority of defamation cases against public figures cannot be sustained, as it can rarely be proven that a defendant knew or should have known that a statement about a public figure was untrue.

In the recent past, there have been calls for this standard to be revisited.  Former President Trump was a big critic of the policy, thinking that he should have a greater ability to successfully sue media outlets over his claims of “fake news.”  Earlier this year, a prominent US Court of Appeals judge suggested that the doctrine should be abolished, using his dissenting opinion (at the end of this decision) to rail against big media companies and what he perceived to be their liberal bias.  This past week, two Supreme Court justices, Thomas and Gorsuch, issued dissenting opinions arguing that the Sullivan standard should change, in a case in which the Court decided not to review a lower court’s finding that a defamation case was precluded by the application of the Sullivan standards.  Justice Thomas has made this argument before (prior case here, new dissent here), but the dissenting opinion of Justice Gorsuch was the first time that he officially went on record calling for a modification of the standard.

The Sullivan standard was adopted, in significant part, to protect press reporting on public issues and to promote public debate about those issues.  The theory underlying the decision is that the Constitution protects free speech and a free press, and that the public and the press would not be free if they were afraid that even well-meaning factual mistakes could result in defamation liability – particularly when covering important issues or public figures.  It was also reasoned that public figures, by putting themselves in the public’s eye, invited more scrutiny and should not complain if, on occasion, a well-meaning but false comment was made about them.

Judge Gorsuch’s dissent was not the aggressive attack on the Sullivan reasoning that has appeared in other calls for abolition of the standard.  Instead, it was a suggestion that the application of the standard had gone too far in protecting those accused of defamation – as too many defendants have been found to be public figures even when their public fame was in very limited circumstances.  His dissent looked to digital media companies as contributing to a situation in which almost everyone is arguably a public figure for doing something that becomes “public” at some time.

In addition, because of the difficulty of proving actual malice – that a party publishing the falsehood knew or should have known that the material was false – his dissent argued that too few cases can meet that burden.  Justice Gorsuch suggested that the standard might even cause publishers to be willfully ignorant of the truth of the matters they publish – Gorsuch called it “ignorance is bliss” – as these parties can, in his view, in some cases protect themselves by saying that they did not know that the material they published was false because they never investigated enough to reach that conclusion.  Based on his recitation of evidence that defamation is now too hard to prove, the dissent suggested that some review of the standard was in order.  He did not necessarily call for the abolition of the principles set out in the Sullivan decision, but suggested that its application needed to be limited, as it was simply precluding too many allegedly defamed people from having their day in court.

These are but two of the nine Supreme Court justices who have suggested that the standard be changed.  Certainly, First Amendment advocates will argue that the standard has proven to be a good one as its adoption led to a flowering of investigative journalism free from the concerns of defamation liability for the slightest of mistakes.  Both investigative journalism and talk radio have blossomed in the years following the Sullivan decision, and no matter which side of the political spectrum one falls, some of their favorite information sources would likely be far more restrained in a world where there were no Sullivan principles restraining defamation lawsuits.

But it is not only in news and talk programming where a change in the standard would have significant impact.  In the political advertising sphere, there also would likely be far more reluctance on behalf of broadcasters and other media companies to distribute to the public some of the hard-hitting political attack ads that now are so common in any political season.  In the past election season, we saw the former President sue one TV station for airing a PAC attack ad that the President claimed to be false.  Any relaxation of the Sullivan standard would likely result in more of these cases.  A relaxation could result in media companies having to vet the truth of every political issue ad to avoid potential liability for its distribution, and these companies might well become arbiters of truth in election campaigns (akin to the role that some have advocated that social media sites should assume in vetting the truth of the content that they transmit).

As we have written here and here, right now, to comport with the Sullivan standard, when stations have questions about the truth of claims made in an attack ad by a non-candidate group, including when the attacked candidate raises those questions, media companies have a duty to investigate because they have been put on notice that the claim could potentially be false.  Continuing to run the ads without any vetting could be seen as violating the actual malice standard through a reckless disregard for the truth or falsity of the ad.  Were that standard to be modified, a strict liability standard could apply, where any publication (which is a broad term for any distribution to the public, including broadcasting) of a false claim could lead to liability.  So broadcasters would have to investigation all ads (not just those that are challenged or where there are questions of truth on the face of the ad), and that review might have to be more rigorous than what is conducted now if the more stringent standards applicable to public figures no longer apply, as even a good-faith mistake could result in liability.

But we are a long way from that point, as it would take at least three more Supreme Court justices to constitute the majority necessary to determine that the standard needs to be changed.  But media companies need to be alert, as this call for change is now spreading.  The implications of any such change could be broad, so media companies need to participate in this debate over the standards that should apply in these cases.

Courtesy Broadcast Law Blog