Last week Florida Gov. Ron DeSantis held a panel focused on defamation featuring six guests who claimed to have been wronged by the media, including lawyers and plaintiffs in media-related cases.
One of those present was Carson Holloway, a scholar at the Claremont Institute, a conservative think tank. Holloway, along with other speakers, strongly believes New York Times Company v. Sullivan, the 1964 court finding that requires plaintiffs in defamation lawsuits to prove malice and reckless regard for the truth, should be altered.
“Five or ten years ago, no one would be talking about New York Times v. Sullivan being revisited,” Holloway said. “But now you have some heavy hitters…raising the question about the original understanding and our libel standards.”
The 1964 case established that in defamation cases, public figures including officials such as DeSantis must be open to criticism since they can defend themselves on their platforms.
Holloway said, “What we seem to have is a culture of impunity in the press that now needs to be addressed by the Supreme Court revisiting the case.”
Another of DeSantis’s guests, Libby Locke, a defamation lawyer from Washington, D.C., did not agree with the case’s interpretation of public figures and officials.
“Who this standard applies to is a huge swath of the American citizenry,” said Locke. “And that means it’s virtually impossible to bring and win one of these cases, and the media gets away with it.”
Florida International University Law professor Hannibal Travis explains the case does not have to be revisited for something to change.
He said the court could “limit New York Times v. Sullivan… using what they have used for the Roe v. Wade issue, which is to say it had an insufficient basis in the Constitution as we interpret it today.”
Various defamation cases have been filed involving media figures such as Sarah Palin and Rachel Maddow.
Palin, a former Alaska governor and vice presidential candidate, sued the Times for an editorial linking her political action committee with the shooting of former Rep. Gabby Giffords, but lost. Maddow, an MSNBC host, called the TV channel One America News “paid Russian propaganda,” prompting a lawsuit that OAN lost.
“Allegedly, the effect of these lawsuits is making the news media more careful,” Travis said. “Possibly pulling back on their reporting even.”
Daniela Abratt, another media law specialist, believes DeSantis’ characterization of the media is harmful to the public’s right to knowledge.
“It’s really an attack on the press,” Abratt said. “If the press is prohibited from reporting on certain things…there’s a sort of chilling effect on their ability… to publish certain things about public figures and public officials.”
DeSantis’ panel also challenged the use of anonymous sources, but FIU professor Travis responded that, “you’d lose a whole bunch of sources…because it would be a smoking gun of malice.”
A bill was recently floated in Florida that would have limited defamation claims, as media lawyer Abratt explained, “If this legislation is passed, it will most certainly be challenged by media entities as violating basically the precedent of Sullivan, and it certainly would be very problematic for the press in Florida.”
Abratt continued, “I think DeSantis has done a pretty good job of appealing to what his base wants, appearing that he is fighting for the little people, I think he is most likely just reinforcing the support that he already has, and maybe gaining some support too because it’s very easy to cost the media as the bad guys.”
So far, Supreme Court Justices Clarence Thomas and Neil Gorsuch have shown interest in revisiting the New York Times v. Sullivan, but at least two more of the nine justices must agree.
