The New York Times Versus Florida
This op-ed was originally published on March 9, 2023 by Newsweek.
Florida legislators are now considering a bill that would call into question the libel doctrine devised by the U.S. Supreme Court in New York Times Co. v. Sullivan (1964) and subsequent cases. That doctrine makes it almost impossible for “public figures” to successfully sue for libel. Last Saturday, The New York Times itself stepped forward to condemn the proposed legislation as an attack on freedom of speech and of the press. But the Times‘ opposition is based on misunderstandings of the bill, the U.S. Constitution, and the history of American libel standards.
The Times editorial opens with a parade of horrors calculated to frighten its readers into opposition to the Florida bill. The Times presents three hypothetical Americans: a homeowner who accuses a building official of being “in the pocket of developers”; a broadcaster who accuses the U.S. secretary of homeland security of being a “traitor” over border policies; and a parent who calls a library board member a “bigot and homophobe” for the removal of a gay-themed book. According to the Times, each of these people could be sued into bankruptcy under the Florida bill.
This is alarmism. A defamation claim must be based on a false and injurious statement of fact. All of the Times‘ hypotheticals are statements of opinion. Statements of opinion—even when extremely negative—are, under ordinary American legal standards, considered privileged and not a proper basis for a defamation suit. The proposed Florida legislation does nothing to alter that sensible and essential principle of free speech, and thus does nothing to forbid the bare-knuckle, obstreperous discourse the Times highlights.
The Times also complains that the bill treats derogatory factual claims based on anonymous sources as “presumptively false” in defamation cases. To hear the Times tell it, you would think that journalists will be automatically liable for defamation if they have used an anonymous source. This is simply not the case. The presumption of falsity in such a case does not prevent a conscientious and responsible journalist from defeating a libel suit by demonstrating that the reported claim was true, or that there was good reason to think that it was true when it was published.
More fundamentally, the Gray Lady’s editorialists, treating New York Times v. Sullivan as a sacred cow, overlook the serious constitutional problems with the doctrine arising from that case and its successors. Those cases hold that “public figures” must be held to a different libel standard than that which is applied for ordinary Americans. The latter only have to show that they have been the victims of injurious, defamatory falsehood. Public figures have a much higher legal hurdle to leap. They have to show not only that they were defamed, but also that their defamer acted with “actual malice”—that is, that the defamer knew the defamatory statement was false, or at least acted with “reckless disregard” for its truth or falsity.
The problem with this New York Times doctrine is that its key concepts are not rooted in the text or history of the First Amendment. The First Amendment protects freedom of speech and of the press. It says nothing about the standards under which libel suits are to be judged, and certainly draws no distinction between “public figures” who have to show “actual malice” and other litigants who do not.
Indeed, the original understanding of freedom of speech and of the press was simple. The Founders believed that libel is outside the scope of freedom of speech and of the press, and that suits against libelous claims raise no constitutional problems. Those who drafted and ratified the First Amendment certainly agreed with the modern Supreme Court that vigorous public debate is necessary to a healthy democracy. But they also understood that the freedoms secured by the First Amendment need to be properly limited to make them compatible with other important goods, such as the right to reputation that is protected by libel laws. The Founding-era view of libel as unprotected by the First Amendment persisted through most of American history, and was reaffirmed by the Supreme Court as late as the mid-20th century—shortly before the Warren Court used the New York Times case to fashion a new and more permissive doctrine and impose it on the nation.
The Florida bill is not as an attack on freedom of speech and of the press, but an attempt to provide adequate protection for the right of reputation cherished by all citizens. Whether such changes in the law are necessary is up to the people of Florida and their elected representatives. But the debate over this question should be informed by an accurate understanding of the bill and America’s constitutional and legal history—not by the fears that the Times‘ editorial is calculated to arouse.