Open Up Libel Laws

December 13, 2022

Carson Holloway

Washington Fellow

This essay was originally published by Compact Magazine on November 30, 2022.

America’s most famous litigant—Donald J. Trump—is back in the news, and not only because he is running for a second term as president. Right before Thanksgiving, CNN submitted its response to a defamation lawsuit Trump lodged several weeks ago. Trump claimed that the network had defamed him by, among other things, describing him as a “racist,” “Russian lackey,” and “insurrectionist.” Seeking a quick victory, CNN moved for an immediate dismissal of the complaint. Now the judge in the case will have to decide whether Trump’s case has sufficient merit to proceed.

As even casual observers of US law and politics know, Trump is unlikely to prevail in the end, even if he can show that CNN spread defamatory falsehoods about him. After all, modern American libel law has been designed on purpose by the Supreme Court to make it exceptionally hard for public figures to sue and recover damages. Accordingly, Trump’s suit will seem to many a quixotic enterprise.

Nevertheless, the case raises a more fundamental question, one that concerns all Americans and that therefore shouldn’t be left entirely to the courts: Should it be so hard for public figures to sue successfully for libel? To borrow a favorite expression of the former president, why should the process of libel litigation be “rigged” in favor of the defendant and against the plaintiff?

America’s contemporary libel standards arise from New York Times v. Sullivan—a case decided by the high court in 1964—and subsequent decisions that further elaborated its revolutionary doctrine. According to that doctrine, libel suits brought by public figures must be judged under standards different from those applied to ordinary litigants. Public figures must show not only that their reputations have been damaged by the publication of defamatory falsehoods. They must also show that the defamer acted with “actual malice”—a technical term meaning that the defamer published either knowing that the claims were false, or at least with “reckless disregard” for whether they were true or false. Not surprisingly, this standard has proved almost impossible to meet in practice, with the result that the media can traffic in defamatory falsehoods with near-impunity.

Like much of the constitutional doctrine that came out of the Warren Court in the 1960s, the actual-malice standard isn’t rooted in the original understanding of the Constitution or in the nation’s constitutional traditions. The Founders wrote extensively about the freedom of the press. They never held that there were separate libel standards for different classes of Americans. They instead held that libel was outside the scope of the freedom of the press and was therefore not protected by that venerable principle.

Libel, the Founders believed, was the violation of an important right: the right to reputation. Thus, the freedom of the press no more included a right to defame another than the freedom to own property included a right to use it to damage someone else’s property. As Justice Joseph Story (writing as a judge in circuit court in 1825) put it, the “liberty” of “the press” has “nothing to do with” libel: “There can be no right in printers, any more than in other persons, to do wrong.” This understanding prevailed in American law until shortly before the Warren Court imposed its novel doctrine in the New York Times case.

A contemporary Supreme Court seriously committed to the original meaning of the Constitution would have to reject the libel doctrine laid down in New York Times v. Sullivan. Admittedly, this originalist conclusion may not be sufficient to move a majority of the justices. Even the most staunchly originalist judges, after all, feel compelled to give considerable deference to longstanding precedents. Accordingly, any practical case for revisiting the New York Times standard requires some additional prudential argument—some claim that the actual-malice doctrine is not only constitutionally erroneous, but also politically harmful.

Such prudential considerations were no doubt at work among the Warren Court justices who handed down the original ruling. Although the constitutional doctrine they imposed had no basis in the Constitution’s original meaning, they did have some compelling reasons to rule as they did on the outcome of the case.

New York Times v. Sullivan arose in the context of the civil-rights movement. L.B. Sullivan, a city commissioner of Montgomery, Ala., claimed that he had been defamed by a political ad placed in the Times by critics of segregationist politicians. Although the ad contained errors of fact, Sullivan’s libel complaint was weak, because the ad had not identified him specifically, or even named the office he held. Nevertheless, Alabama courts had ruled in Sullivan’s favor, awarding him a whopping $500,000 in damages.

The high court had real reasons to fear that Southern politicians and sympathetic Southern courts were manipulating libel cases to silence national debate about racial segregation. Today’s court and today’s society, however, confront different problems. The civil-rights movement ended in victory long ago. Moreover, while vigorous debate about public issues is just as essential to self-government today as it was in 1964, the threats to that debate are very different now than they were then. The problem in 2022 isn’t a press intimidated into silence by the threat of libel suits. It is rather an overbearing and abusive press that can defame without fear of legal consequences, thanks to the actual-malice standard imposed in New York Times v. Sullivan.

The resulting culture of defamation undermines one of the core promises of American political life: self-government. Voters must have access to true and relevant information about those for whom they cast their votes. In a proper political culture, a professional and unbiased media would provide an essential service by conveying such information. No serious observer thinks this is what is currently happening.

Instead, we have a partisan press that tries very hard to shape political outcomes by destroying the reputations of some public figures through relentlessly defamatory propaganda. The aim is often to render candidates with popular platforms unelectable, by rendering them personally objectionable to voters, often by using unverifiable “information” provided by anonymous sources. This, for example, was the whole point of the media campaign to accuse then-candidate Trump of somehow illicitly “colluding” with Russia. Those who spread those smears did so precisely because they feared that the issues on which Trump chose to run—his populist positions on trade, foreign policy, and immigration—might actually persuade a majority of voters.

When the press distracts from public-policy questions with sensationalistic claims and fears that turn out to be groundless, it is not aiding the voters’ efforts at self-government, but duping them. The actual-malice standard, then, deserves to be junked not only as a matter of constitutional law. It also deserves to be rejected because it undermines our country’s capacity for genuine self-government. Defenders of our permissive libel standards say (correctly) that a free press is essential to democracy. But they overlook that a free press isn’t the same thing as a licentious press.

American media are free to distort our public discourse in this way precisely because our existing legal standards make it so difficult for a public figure to sue for libel. It does not have to be this way. The Supreme Court created this problem, and it should correct it as soon as a suitable case presents itself.