The Definition of Defamation is Up in the Air

Underlying all the recent commotion surrounding Fox, Tucker Carlson, and the mess they've created for themselves, there's an important legal issue that has flown largely under the radar, but may soon be ready for its closeup.

It's a First Amendment issue concerning the meaning of defamation, and the standard that must be met to prove it. The constitutionality of the existing standard was expected to be tested in the Fox-Dominion case, had that case come to trial. But since that didn't happen, I figured it would go back to the back burner.

But then, last week, Ron DeSantis had it blow up in his face, giving the whole issue new momentum, and from a surprising direction.

His own people took him down. DeSantis had talked his pet legislature into launching an outrageous assault on freedom of the press, eviscerating existing libel laws, and making it easier for public figures — like, say, DeSantis himself— to sue for defamation.

One can just imagine DeSantis cackling over this, thinking he'd have new ways of sticking it to the woke liberal media. Apparently, he never considered that he might also be sticking it — and even harder — to his own right-wing media cronies.

Because over on the wingnut side of the media world, publishers can only exist in an ecosphere of lies. Lying to their audience is a baked-in practice, and a lot of that lying concerns public figures. DeSantis's proposed legislation would have given those public figures a much lower bar for proving they'd been defamed. If the bar had been so low when Dominion sued Fox, the settlement would have been twice as much.

In other words, the proposed laws would make publishers who subsist on lies much easier to sue. Which is not what DeSantis had in mind, though thinking things through is not his sweet spot.

To the right-wing media barons of Florida, however — call them the Foxlets — these bills were a huge red flag. Defamation is one of their best products, and they weren't happy at the prospect of a parade of lawsuits pertaining to that product.

For all the little Foxlets, the Dominion settlement had been, no doubt, a life-changing moment. They could see, quite clearly, that what had happened to Fox could happen to them, and that their pockets were nowhere near as deep as Fox's.

And then, even as they were still reeling from the Fox fiasco, along comes DeSantis, totally oblivious to the ways he's threatening their entire business model. What could they do but tell his flunky legislators to back off? Leaving egg all over DeSantis's face.

What's amazing is that he somehow didn't comprehend that the ability to lie with impunity is mission-critical to the Foxlets — just as it is to him — and that they can't do that if lawsuits start ruining the impunity part. Regardless, the offending legislation is off the table, at least for now.

But it did put a spotlight on the whole legal debate around defamation, and on arguments that could eventually make their way to the Supreme Court. If they do, SCOTUS could get to create a whole new standard for defamation. Which might not be a good thing. But then again it might.

The existing standard has been in place since 1964, when SCOTUS ruled in the matter of New YorkTimes v. Sullivan. It was, to be sure, a different sort of SCOTUS.

Sullivan, the plaintiff, was a police chief in Montgomery, Alabama, a place then known for racial violence, and a target for civil rights efforts. One of those efforts, a fund-raising ad for activist causes, had run in The Times. The ad contained a false statement about a racial incident in Montgomery, and Sullivan claimed that he and his department had been defamed by that falsehood. Alabama courts agreed with him, and ordered The Times to pay damages of $500,000.

But SCOTUS, on appeal, did not agree. It overturned the Alabama decision, not because The Times wasn't wrong — it was — but because The Times has a constitutional right to be wrong.

The ruling declared that "...debate on public issues should be uninhibited, robust, and wide-open.” Which implied that the press should be given wide latitude to question the conduct of public figures, without fear of being sued over honest mistakes. Thus was created the standard for defamation that has held ever since.

Under the "Sullivan standard," as it's now known, publishers cannot be sued for defamation simply for being inaccurate. They must be proven to have acted in "actual malice," a legal term of art meaning that they knew what they published was false, or that they published it in "reckless disregard" of the truth.

This is a high bar indeed — extremely difficult to prove — which is why it is so remarkable that Dominion apparently had cleared it in its case against Fox. Smartmatic will probably clear it as well, and they have vowed to go to trial. If they do — which is not a given — SCOTUS may yet get to address the Sullivan standard.

Clarence Thomas and Neil Gorsuch have long waited for such a case, which would let them argue for a lower bar, presumably so that idiots like Donald Trump — or like Thomas himself — would be able to sue the mainstream media over what they perceive as libel.

But Thomas and Gorsuch might be having second thoughts about that. Between the Dominion settlement and the DeSantis embarrassment, all their right-wing media friends are now seeing litigation lawyers in their sleep. If SCOTUS were now to loosen the Sullivan standard, it would mean that any news source — mainstream or fringe — would be far more vulnerable to lawsuits that challenge any falsehoods in its stories.

The issue is not cut-and-dried. The Sullivan standard is not universally loved, on either the left or the right. The high bar it sets indeed serves to protect honest journalism, but at the same time it gives cover to overt propaganda. It shields mainstream media from frivolous lawsuits, but it allows fringe media to build lucrative businesses on foundations of deceit.

Consequently, there is some support, even in the reality-based community, for seeing the Sullivan standard relaxed a bit, for the very reason that the Foxlets were so mad at DeSantis: It would make it harder for them to lie with impunity, and easier to sue them when they do.

So it's a trade-off, and I'm not sure where I stand on it myself. On one hand, anything that makes an already-too-litigious society even more litigious should be viewed with suspicion. On the other hand, anything that makes it easier to crack down on the blatant dissemination of lies that afflicts the nation in this moment would surely be a welcome development.

Much as we might loathe the likes of Gorsuch and Thomas, we might soon find ourselves agreeing with them. But then, in light of Dominion's success and DeSantis's failure, they are probably in the process of rethinking their position.

After all, the ability to lie without restraint is at the core of everything they stand for. The last thing they want to do is mess with that.