In the Wake of Rittenhouse, Our Defamation Laws Must Be Changed (Part One of Two)

Back in the 1960s — more than half a century ago — the New York Times ran an ad in their very powerfully influential Sunday edition about racism in Alabama and in some other southern states. The advertisement, “Heed Their Rising Voices,” consisted of a long narrative detailing some really bad racial hate and actions down there, with a focus on the institutional harassment and mistreatment of Rev. Martin Luther King, Jr.,  and was signed by a long litany of famous entertainers, Nobel Prize winners, civil rights leaders, and faith figures. Names like Marlon Brando, Ruby Dee, Stella Adler, Harry Belafonte, Rev. Donald Harrington, Sammy Davis, Jr., Sidney Poitier, Mrs. Ralph Bunche, Bayard Ruston, A. Philip Randolph, Hope Lange, Nat King Cole, Jackie Robinson, and Eleanor Roosevelt. The ad, however, went beyond exclusive accuracy and described some additional forms of racial hate that simply were not true. For example:

In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truck-loads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was pad-locked in an attempt to starve them into submission.

It was not true that the state police had undertaken to starve the students. Likewise, the ad incorrectly alleged some other hateful race actions supposedly perpetrated by the Montgomery police — but actually not. Against that backdrop, Montgomery Police Commissioner Lester Bruce Sullivan wrote the Times, demanding a retraction. Sullivan was so politically influential, powerful, and presumably popular in his city at that time, that he not only was police chief but also was prison commissioner, commissioner of public safety, fire commissioner, and was in charge of cemeteries and scales. You might say he worked on commission, evocative of those comical movies where the highway trooper stops a speeding driver, writes a ticket, the driver says he will fight it in court, and the cop then takes out a robe and a powdered white wig and says “Go ahead, I’m also the judge.”

The Times wrote back that the ad was not about Sullivan but about racism in the south. Sullivan then sued the Times and several prominent civil rights leaders for defamation. He could have sued in New York or Alabama, and his attorney obviously chose Alabama. He sued in state, not federal, court. Given an Alabama jury, he won a verdict of $500,000. The Times appealed within the Alabama judicial system up to the Alabama Supreme Court and lost. At this point, they sought help from the federal system, essentially contending that this was one of those unusual situations where a defendant could not get justice in a prejudiced state venue. The United States Supreme Court heard the case and handed down a landmark First Amendment opinion, New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964).

In summary — my way of saying it, not the Court’s — here is the Court’s bottom line:

America cherishes First Amendment freedoms, including freedom of speech and of the press. A robust news media is vital to a free society because, when other organs in the system become corrupted, the press exists as a Fourth Estate, independent and free outside the system, to root out corruption. This has been true from John Peter Zenger to the fictional Jimmy Stewart character in Mr. Smith Goes to Washington. The press uncovered important aspects of Watergate, and — believe it or not — the New York Times played an important role in revealing Hillary Clinton’s emails and in, uh, exposing Anthony Weiner. Therefore, the Court said, we have to protect newspapers and journalists from being sued into bankruptcy when they make mistakes that are more innocent than not.

At the time, a series of southern state juries had handed down some $300 million in defamation judgments against various northeastern newspapers. It actually had become a concerted political strategy in the south to sue news organs in the north for libel (written or published defamation). These judgments threatened the continued survival of a free press in two ways, one overt and one subtle. The judgments literally stood to knock certain media out of business. Equally concerning, such judgments essentially threatened to intimidate news media to self-censor, very much akin to what conservative professors now do at cancel-culture universities where they teach on egg shells and fear speaking truth. If journalists will not ferret and publications will shy away from disclosing truths about corruption among the powerful, we will emerge no better than Stalinist Russia, Castro Cuba, Maoist China, Hitler Germany, almost all Arab Muslim regimes, Shiite Iran, and Chavez Venezuela. Therefore, we do need to protect media from being bankrupted by defamation suits.

On the other hand, innocent people have to be protected, too. We cannot just allow media to soil people whom they hate. There needs to be balance, with even extra protections for private people. In the case of public figures, they consciously have chosen the limelight. That brings them lots of money, fame, glory — while everything in life comes at a price. If you want to be a famous Congressman, your texting fetish will bring you more embarrassment when disclosed to the public than a private pervert would experience. If you want to make zillions of dollars by memorizing some script lines, acting or singing pretty well, and want the fame of everyone knowing you and begging you to autograph their napkins at restaurants, you also need to accept that some of your private moments will be invaded, and nudniks with cameras will photograph you at your front door step before you have applied your makeup or done your hair first thing in the morning when you open that door to bring in the milk, the mail, or the Amazon delivery. Likewise, an “innocent” peck on the cheek may show up on the front page of a supermarket-line weekly scandal newspaper, with a caption implying adultery, because the same fools who live all week to read your every tweet and to experience their lives vicariously through your alveoli also have a “right to know” what you really look like and with whom you are cavorting. Therefore, public people should expect to receive less legal protection from media mistakes. Also — very importantly — a public person can call a press conference or go on a TV interview to refute and tell his or her side of the story, while a private person does not have that access.

As a result, the Court unanimously came up with a new rule: a public person suing for defamation must show clear and convincing proof of “actual malice.” That unfortunate two-word term actually is a poorly conceived descriptor, confuses the law more than sheds light on it, and has given rise to countless mistaken lawsuits and judgments based on mixing up what “actual malice” means. In one particularly weird but quasi-landmark case, the U.S. Supreme Court had to reverse a federal appellate circuit holding because the appellate judicial panel literally had misunderstood aspects of the term.  Cantrell v. Forest City Publishing Co., 419 U.S. 245, 96 S. Ct. 465 (1974). Under the new rule — sometimes called “actual malice” and sometimes called “New York Times malice” — a plaintiff public person must show that the alleged defamation is factually false and that the defamer knew it was false or acted with reckless disregard for the truth.

Four years later, the Supreme Court determined they needed further to clarify what “reckless disregard for the truth” entails, so they further held that it is “reckless” when someone entertains serious doubts whether a particular horrible allegation is true but publishes it anyway without checking into it further. That is, it is not the mistake of fact but the defamer’s determined alacrity in publishing the accusation even though he or she perceives an uncertainty and knows the facts responsibly need to be double-checked. St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323 (1968). The painful ramification of St. Amant: If the defamer is a moron or idiot and does not realize that the accusation needs some extra “looking up” and “checking into,” the defamer will win at trial because that defendant never entertained serious doubts. So the plaintiff has to get inside the defamer’s head, showing what actually was being thought, and that usually entails oral discovery (depositions) and written discovery (interrogatories, document demands, and such). In St. Amant, the majority felt they could not say with certainty that the defamer had entertained serious doubts as to the veracity of his wrong claims before he published them, so he got off scot-free even though he and an associate he sponsored lied about his political opponent on TV. There is a really amazing dissenting opinion in St. Amant, where Justice Fortas, who himself was the target of defamers, wrote:

The First Amendment is not so fragile that it requires us to immunize this kind of reckless, destructive invasion of the life, even of public officials, heedless of their interests and sensitivities. The First Amendment is not a shelter for the character assassinator, whether his action is heedless and reckless or deliberate. The First Amendment does not require that we license shotgun attacks on public officials in virtually unlimited open season. The occupation of public officeholder does not forfeit one’s membership in the human race. The public official should be subject to severe scrutiny and to free and open criticism. But if he is needlessly, heedlessly, falsely accused of crime, he should have a remedy in law. New York Times does not preclude this minimal standard of civilized living.

Petitioner had a duty here to check the reliability of the libelous statement about respondent. If he had made a good-faith check, I would agree that he should be protected even if the statement were false, because the interest of public officials in their reputation must endure this degree of assault. But since he made no check, I agree with the Supreme Court of Louisiana that New York Times does not prohibit recovery.

In a follow-up landmark defamation case a decade later, Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997 (1974), the Court tried to give a bit more power to defamation plaintiffs who are more private players in society but who are targeted on matters of public concern, for example an extremely liberal attorney nevertheless being labeled as a communist when he defended a Black youth who had been shot to death by a White police officer. And ten years later, the Court gave even more latitude to private plaintiffs in defamation suits entailing matters that are purely private.  Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S. Ct. 2939 (1985). We have been locked into these defamation rules, more or less, ever since. Thus, in 1982 Time magazine published lies and a “hit piece” accusing Israel’s then-Defense Minister, Ariel Sharon, of plotting with Lebanese Maronite Christian Arabs to murder “Palestinians” in a south Lebanon “refugee camp.” Sharon sued for libel, and his legal team proved at trial that Time had published lies and that key players in writing the account had long, documented, proven left-wing political biases that drove their hit piece. Even so, Sharon was denied damages (money) because the jury were not fully certain whether the key lies were completely purposeful and whether Time’s editors had entertained serious doubts when they asked their biased journalist whether he was certain of his claims — to which he responded with the equivalent of an unspoken thumbs-up gesture. Consequently, Sharon sued again — this time in Israel — and he emerged with an out-of-court settlement that cleared his reputation to the extent that he eventually became Prime Minister. However, he could not get that justice under America’s defamation laws. Our defamation laws demand revisiting.

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