Berl Falbaum
Roughly six decades ago, the U.S. Supreme Court issued a ruling that gave the media almost total protection from libel suits.
The 1964 unanimous decision (9-0) in New York Times v. Sullivan, declared that in order for plaintiffs to win defamation suits when public officials or public figures are involved, they must prove the offending articles were broadcast or printed with what the court described as “actual malice.”
Under that doctrine, plaintiffs must prove the offending stories were published with knowledge that the information was false or the media outlet displayed a reckless disregard for the truth.
It is an almost impossible bar to overcome. At the time of the decision, I was a general assignment reporter for The Detroit News and the landmark ruling was celebrated by just about everyone in the newsroom. I was a lone dissenter except for a News political columnist, Will Muller, who criticized the court. I still remember almost exactly the headline on his column that read something like: “…Truth Should Be the Only Armor for Journalists…” That is how it should be.
I raise the issue because of the $1.6 billion lawsuit that had been filed by Dominion Voting Systems against Fox News. Fox News continually broadcast stories that Dominion participated in rigging the 2020 election against Donald Trump.
The suit was settled April 18 only minutes before the trial was to begin with Fox News agreeing to pay Dominion $787.5 million.
Dominion would have introduced numerous emails and texts from Fox News reporters, editors, and executives to prove that the news outlet knew its stories were false. Moreover, Rupert Murdoch, the media mogul and executive chairman of Fox News, admitted in a deposition that Fox broadcast lies and even confessed he could have stopped it but didn’t.
Here are just a few of the texts Fox News commentators sent privately to each other:
The charges are “absurd;” “the software s___ is absurd;” the evidence is “kooky;” it’s “shockingly reckless to claim Dominion rigged the election;” and “…we don’t know anything about the software that many say was rigged.” There were other condemnations of what was being broadcast about the so-called rigged election.
I taught journalism, including a course in law of the press, as an adjunct instructor at Wayne State University for 45 years, and I never encountered a case in which the Sullivan doctrine was more applicable than this one. Fox News recognized its vulnerability and settled to cut its losses. If Fox’s reporting was not actually malice as defined by the court, we might just as well do away with all libel suits.
There are numerous inherent problems with Sullivan.
The decision is always — note the use of the absolute “always” — discussed in terms of how it affects the media and those covered by journalists. The issue is never — again the absolute — considered whether Sullivan is in the public interest. It isn’t; far from it.
The public makes its decision on politics, business, sports, entertainment, etc., on the information it receives from the media. It has no independent line of information. Was the public, in this case, served by receiving admittedly false information continually from what is perhaps the most powerful cable news network? (I would hazard a guess that even some Fox News fans are angry that they were lied to about the 2020 election.)
Is the public well served by consuming defamatory charges against politicians, corporations and others that aren’t true? The answer is self-evident.
Next: Why should motivation matter? The public doesn’t care about motivation. It expects the news to be accurate and truthful. Why should a plaintiff have to prove that the defamation was caused willfully? Motivation might be a factor in assessing punitive and compensatory damages, but if reputations are destroyed and misinformation is disseminated it should not matter if it was done inadvertently, carelessly, erratically, recklessly, irresponsibly or, as Sullivan would have it, purposely.
Distributing news that is inaccurate, distorted, and defamatory is as dangerous as it is to manufacture cars with faulty brakes. As they say, the pen is mightier than the sword.
Journalists frequently lament that trust in the media has continually eroded. Some polls, ironically, reveal journalists are trusted less than those they cover.
Wrapping themselves in Sullivan doesn’t help. You can’t proclaim that you have a constitutional right to defame, perform irresponsibly, destroy reputations, lie, and then ask the public to “trust us.” And worse, you can’t ask the public not only to embrace you, and accept troubling compromises in an absolute standard of truth but nevertheless buy your product.
Proponents of Sullivan argue that reversal of Sullivan would have a “chilling effect,” and temper aggressive reporting. If that is true, but leads to more accurate, responsible and more truthful coverage, I would say, “Let’s chill out.”
I am going to go out on a limb and contend that if any of the nine justices who signed on to Sullivan were a victim of a defamatory profile, he or she would not defend the respective media institution, forego filing a lawsuit or turn the other cheek because the story was not published with actual malice.
In its ruling the Supreme Court said it favored a “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.”
No one can argue with that.
But as we are learning given the new technological age, democracy is not healthier or stronger by being inundated with constant misinformation, let alone defamation.
A robust debate should be based on truth and nothing but the truth, so help us God.
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Berl Falbaum is a veteran political reporter and author of 12 books.
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