The Right Wants to Gut Press Libel Protections; Dominion Voting Systems Suit Shows They Might Regret it

Fox News is in legal trouble. The media giant is facing lawsuits from two voting-machine companies over segments it aired with Donald Trump surrogates parroting the former president’s made-up allegations that the 2020 presidential election had been thrown by compromised voting machines—insinuations that Trump’s own advisers told him did not hold water.

Defending their client, Fox News’s attorneys have relied heavily on free-speech doctrines established by the 1964 landmark Supreme Court case New York Times v. Sullivan—specifically, the standard of “actual malice.” This standard says that when it comes to public figures, a speaker must know their statements are false or display “reckless disregard” for whether the statements are true in order to meet the requirement for defamation. In that particular case, the Montgomery, Alabama, public-safety commissioner, L. B. Sullivan, sued The New York Times over an ad it had published calling for donations on behalf of the civil-rights leader Martin Luther King Jr. Although the ad made some factual errors regarding the police department Sullivan oversaw, the Court ruled that the Times was not liable, because the purpose of the First Amendment was to guarantee that “debate on public issues should be uninhibited, robust, and wide-open,” and that such debate “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

This standard has protected the right of Americans of all political persuasions to make absurd, hyperbolic, and sometimes even false statements about their political leaders. This is how it should be. The bar is not unreachable, but it is justifiably high in order to protect public criticism of powerful people. Following former President Trump’s calls to “open up our libel laws,” gutting the free-speech protections of Times v. Sullivan has become a right-wing cause, presumably because some conservatives imagine that the “fake-news liberal media” will be swiftly bankrupted for saying mean things about the smart and handsome Mr. Trump. But the Fox News lawsuits show that conservatives’ enthusiasm for gutting Times v. Sullivan would leave right-wing media outlets more vulnerable than perhaps they appreciate.

In a dissent last year, the conservative federal judge Laurence Silberman called for Times v. Sullivan to be overturned, complaining that the Times and The Washington Post “are virtually Democratic Party broadsheets” and adding that “nearly all television—network and cable—is a Democratic Party trumpet.” This is false, but even if it were true, one strains to see what relation it has to defamation law. Like most frustrated news consumers, Silberman’s complaints regarding the mainstream press are about framing, emphasis, and story selection—not facts.

Silberman’s position is nevertheless shared by some very powerful people. Three years ago, Justice Clarence Thomas wrote in a concurring opinion that the Supreme Court should overturn New York Times v. Sullivan and rethink the actual-malice standard. That case was a particularly compelling one for his point: It involved a woman who had sued Bill Cosby for libel after the disgraced comedian’s lawyer accused her of lying about being assaulted by Cosby. The Court declined to take the case, leaving in place a lower-court decision in Cosby’s favor on the grounds that the plaintiff had become a “limited-purpose public figure”—a term describing an otherwise private citizen who finds themselves at the center of a public controversy—and that the attorney’s statements therefore did not meet the actual-malice standard.