Supreme Court Justices Clarence Thomas and Neil Gorsuch think it’s time to reevaluate libel protections for the media and journalists in the digital age.
A landmark 1964 case, New York Times v. Sullivan enshrined the precedent that public figures were required to prove with clear and convincing evidence that false statements were made with “actual malice,” and intentionally harmful. The case determined public figures had a higher burden to prove libel than private citizens, leading to extreme difficulty in prosecuting such cases.
Their dissenting opinions that argued the court should have taken up the case come after the high court declined to decline to hear a case by Shkelzën Berisha, regarding his characterization in the 2015 book “Arms and the Dudes,” that alleged the son of a former Albanian prime minister was involved in an arms-dealing scandal. The book hit the big screen in 2016 as the film ‘War Dogs,’ starring Jonah Hill and Miles Teller.
Since Berisha was not able to prove that the allegations of involvement in the scandal were “actual malice,” a lower court sided with the book’s author Guy Lawson and publisher Simon & Schuster.
Thomas, who has served on the high court since 1991, questioned the “actual malice” standard set in the pre-digital media era for public figures and noted that there is a “lack of historical support” for it. He cited the false “Pizzagate” conspiracy theory that claimed a pedophile ring led by Hillary Clinton was housed in a Washington D.C. area pizzeria. “Public figures or private, lies impose real harm,” the Yale graduate wrote.
“Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires,” Thomas wrote.
Thomas made a similar call to review the libel standards in 2019 calling the decision in the New York Times v. Sullivan case “policy-driven decisions masquerading as constitutional law.”
Gorsuch added additional support to the call to review the standard arguing that the “actual malice” standard may have applied at that time when there were far fewer news outlets “often employing legions of investigative reporters, editors, and fact-checkers.”
“Large numbers of newspapers and periodicals have failed,” Gorsuch wrote. “Network news has lost most of its viewers. With their fall has come the rise of 24-hour cable news and online media platforms that ‘monetize anything that garners clicks.”
“What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets,” Gorsuch continued, “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
Gorsuch added that in today’s world of highly segmented media, “private citizens can become ‘public figures’ on social media overnight.”
“Rules intended to ensure a robust debate over actions taken by high public officials carrying out the public’s business increasingly seem to leave even ordinary Americans without recourse for grievous defamation,” Gorsuch argued. “At least as they are applied today, it’s far from obvious whether Sullivan’s rules do more to encourage people of goodwill to engage in democratic self-governance or discourage them from risking even the slightest step toward public life.”
“In adding my voice to theirs, I do not profess any sure answers,” the 53-year-old justice Gorsuch concluded, “I am not even certain of all the questions we should be asking. But given the momentous changes in the Nation’s media landscape since 1964, I cannot help but think the Court would profit from returning its attention, whether in this case or another, to a field so vital to the “safe deposit” of our liberties.”
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