Malice Toward All, Defamation for None?

December 20, 2022

Carson Holloway

Washington Fellow

This essay was originally published by December 20, 2022 by Law & Liberty.

New York Times v. Sullivan has not been the pure boon to democracy and the Constitution that its defenders claim.

Right after Thanksgiving, a federal judge for the Southern District of New York ruled that former Congressman Devin Nunes’s lawsuit against NBC-Universal Media may proceed. Nunes is suing NBC-Universal for defamation, and the media giant responded by making a motion to dismiss. Judge Kevin Castel’s ruling is not a definitive resolution of the case (it only holds that it has sufficient merit to move forward for now). Nevertheless, we can learn a lot from his order and opinion about the state of American defamation law—both what it is and, perhaps, how it could be improved.

The ruling is a partial victory (and hence a partial setback) for both sides. Nunes’s original complaint was based on three statements made by Rachel Maddow on her MSNBC show of March 18, 2021. The judge held that two of the statements are not actionable, but that a third is. Thus, the case can go forward in a stripped-down form, focused on Maddow’s one potentially defamatory remark.

In her broadcast, Maddow, while commenting on a newly declassified report from the Director of National Intelligence, claimed, in the first place, that Nunes had “accepted a package” from Andriy Derkach, a man “sanctioned by the U.S. Government as a Russian agent.” In the second place, Maddow asserted that Nunes had “refused to hand” the package “over to the FBI, which is what you should do if you get something from somebody who is sanctioned by the U.S. as a Russian agent.” Finally, she noted that the “Republicans” had nevertheless “kept Mr. Nunes on as the top Republican on the intelligence committee, and then asked, rhetorically, “How does that stand? How does that stay a thing?”

Judge Castel found that Maddow’s first and third statements were not defamatory.  Although the first was technically inaccurate (because the package had been handled not by Nunes but by his staff), it was nevertheless “substantially true.” Here the judge’s opinion nicely brings to light the moral principles that inform defamation law. The point of such law is not to guarantee the absolute accuracy of everything that is said about every person. It is rather to protect individuals from a specific kind of injury: the harm to reputation that comes from false and seriously derogatory claims. If a statement is somehow incorrect, but still close enough to the absolute truth that it would not make any difference to the typical viewer’s judgment about the plaintiff’s reputation, then it cannot be defamatory.

The judge found that Maddow’s third statement was not defamatory because it was merely an expression of opinion that Nunes was not fit to remain on the House Intelligence Committee. Generally, remarks that reflect negatively on a person’s professional fitness are capable of being defamatory. Nevertheless, as Judge Castel explains, a statement, to be a proper matter of a defamation claim, must be a false statement of fact. The aim of defamation law is to protect the reputations of individuals not from negative opinions (which are unavoidable in life, especially in a free society) but from harmful and false statements of fact.

This brings us to Maddow’s second statement, which is, according to Judge Castel, the surviving basis for Nunes’s suit—and for NBC-Universal’s potential liability. Maddow’s claim that Nunes had refused to hand the package over to the FBI is potentially defamatory because it is both a statement of fact and reflects badly on Nunes’s professional conduct. It is also substantially untrue. In fact, the package had been promptly forwarded to the FBI and had thus been handled appropriately. Maddow, then, said something factually false that was injurious to Nunes’s reputation.

It would seem, then, that Nunes has, based on this remaining complaint, a strong defamation case against NBC-Universal. But not so fast. As Judge Castel’s opinion reminds us, Nunes, as a then-member of the House of Representatives, is a “public figure” for the purposes of this case. As such, it is not enough for him to show—as it would be for an ordinary litigant—that he was the victim of a defamatory falsehood. He must also show that the defamation was done with “actual malice”—that is, that Maddow knew the statement was false at the time that she made it, or that she at least acted with reckless disregard for its truth or falsity. The judge denied NBC-Universal’s motion to dismiss because it is plausible that, once the case is more fully litigated, Nunes could bring evidence that Maddow acted with the necessary “actual malice.” Nevertheless, past experience of similar suits by public figures shows that it is very difficult if not near-impossible to demonstrate actual malice. Accordingly, Nunes’s suit will probably fail in the end, even though the judge has let it move forward for now.

In truth, the “actual malice” standard is a problem not only for Devin Nunes but, more generally, for American law and American democracy. To be clear, the problem here is not with Judge Castel’s opinion.  It is a faithful and able exposition of the prevailing legal standards, which are binding on him as a district court judge. Nevertheless, the requirement that public figures demonstrate actual malice in defamation cases is an unconstitutional and harmful novelty that the courts should reconsider.

The long-term tendency of the actual malice standard is to undermine the quality of democratic deliberation by eroding the factual reliability of the public discourse.

The standard is a novelty because it is not rooted in the longstanding tradition of American defamation law. It is rather the fruit of the innovating spirit of the 1960s. It was only in 1964, in New York Times v. Sullivan, that the Supreme Court held that the First Amendment requires that public figures, unlike ordinary litigants, have to show not only that they were injured by defamatory falsehood, but also that the defamation was done as the result of actual malice. The standard is a fairly typical product of the Warren Court, which was short on respect for America’s legal traditions and long on the desire to devise new principles that the justices believed were somehow more enlightened and progressive.

The “actual malice” standard is unconstitutional because it is not really required by the original understanding of the First Amendment. As has been observed by Justice Clarence Thomas (and as I have argued at length here), the Founding generation—those responsible for writing and ratifying the First Amendment—did not hold that the Constitution requires that libel actions be judged under different standards for public figures. They held instead to a simpler principle: namely, that libel or defamation is not part of the freedom of the press, and that therefore legal actions against libel raise no constitutional problems. This Founding-era understanding, moreover, prevailed in much of America—and was reiterated by the Supreme Court—up until the New York Times Court changed course in 1964.

Finally, the “actual malice” standard is harmful because it introduces an indefensible inequality into our law of defamation and undermines our capacity for self-government. One of the great promises of the American regime is equality before the law. That principle requires that the law protect the rights of all equally. The New York Times doctrine instead sets up a kind of class system in which the right to reputation of the famous or prominent—“public figures”—is less protected than that of ordinary people. This is no more consistent with America’s best traditions than if we were to declare that henceforth the property rights of the rich would be less protected than those of the poor and middle class.

The New York Times court tried to justify the “actual malice” standard by appealing to the requirements of self-government. A healthy democracy, the Court contended, requires vigorous public debate—debate that the Court feared might be chilled by excessive libel actions in the absence of the actual malice standard. Whatever threats to freedom of the press may have concerned the Court in 1964, we can see today that the long-term tendency of the actual malice standard is to undermine the quality of democratic deliberation by eroding the factual reliability of the public discourse. The debate necessary for a healthy democracy must be not only vigorous but also accurate. For the people to govern truly, the information on the basis of which they make their political choices must be true. But the actual malice standard, by making it so difficult for a public figure to sue successfully for libel, perversely ensures that journalists have little legal incentive to ensure that their reporting and commentary are factually accurate.

Moreover, Nunes’s suit itself reminds us of who really benefits from the “actual malice” requirement. Nunes is not suing Rachel Maddow. He is suing her employer, NBC-Universal. We often think of reporting as being done by independent journalists. Under the spell of this vision, we may imagine that the “actual malice” standard protects such journalists from abusive lawsuits brought by powerful public figures. In reality, most journalists today—at least most of the really influential ones—are employees of massive media corporations. The actual malice standard, then, does not protect journalists so much as it protects those corporations. Viewed in this light, the privilege that the actual malice standard creates for journalism savors more of oligarchy than of democracy.

The New York Times doctrine, then, has not been the pure boon to democracy and the Constitution that its defenders claim.