By Chris Satullo
When Florida Gov. Ron DeSantis thinks about libel law, he dreams of a day when he and his political pals can bombard The New York Times, that Gray Lady for which he harbors such a white-hot hatred, with successful lawsuits.
Me, I think about the Alton Telegraph in Illinois. More on that local news operation in a moment.
DeSantis last week said he’s taking aim at one of the landmark precedents that bolster a watchdogging free press: the 1964 Supreme Court ruling in the case known as New York Times v. Sullivan. That decision provided journalists with powerful protection against libel claims when they publish or air critical reports about public officials or bona fide public figures.
Much of the famous investigative reporting you’ve watched movies about – from Woodward and Bernstein on Watergate to the Boston Globe on clergy abuse to The Times on Harvey Weinstein’s sexual assaults – might never have been published were it not for Times v. Sullivan.
DeSantis said he would push state legislation to erode those protections for journalists in Florida, including eliminating any libel protection for information or statements provided by unnamed sources (AKA whistleblowers).
But, as with many of the Florida governor’s stunts, this teaser for a potential bill was aimed not at reality, but at pleasing the MAGA masses. His stated goal is not something he really has the power to achieve – and may not even intend to pursue with any vigor. The showy announcement itself was the point, another signal to GOP primary voters that he is just as Trumpy as Trump, only more focused and disciplined.
DeSantis wants to poke a finger in the eye of The Times and the other paragons of the “liberal media” that can make his life miserable by reporting on things he’d rather relegate to the shadows while he runs for the Oval Office. The other day he called them “leading purveyors of disinformation.”
The Alton Telegraph, however, is a reminder that, when you mess with the First Amendment’s guarantee of a free press, you risk collateral damage you don’t anticipate.
The Telegraph, based near St. Louis, is one of those local papers with a mission to report on the daily issues and controversies of a particular community, providing accountability for elected officials and useful information to citizens. In the 1960s, a local developer sued the Telegraph for libel over information it actually never published. The paper’s reporters were looking into rumors about the developer’s alleged Mob ties. They referenced the rumors in a memo to federal investigators, checking on whether they had any validity. In other words, just local journalists doing their jobs.
But their memo surfaced in a way that damaged the developer’s reputation.He sued; a decade later, an ill-advised local jury awarded him a $9-million judgment, more than the paper’s worth at the time. That forced the Telegraph into bankruptcy. (It did barely survive that ordeal, got sold and continues to publish to this day, in shrunken form.)
The fear that rampant lawsuits and runaway juries could imperil watchdog journalism about both local and national governments was what motivated the 9-0 Supreme Court vote in Times v. Sullivan. (That was another case where a paper was being sued for something its reporters didn’t write. An ad placed in support of Dr. Martin Luther King Jr. contained some minor inaccuracies upon which a plaintiff pounced.)
The court ruled that a public official (in this case an Alabama commissioner of public safety) could not win a libel action unless a defamatory statement was published with knowledge that it was false – or with reckless disregard for whether it was.
Remember, a statement can be defamatory – that is, damaging to a person’s reputation – without being libelous. I can write that Harvey Weinstein is a convicted sexual predator, which is clearly defamatory, but also just as clearly true, thus not libelous.
What the Sullivan ruling said – using the unfortunately misleading legal term “actual malice” – was that democracy and electoral accountability would be undermined if public officials were able to put papers like the Telegraph out of business for publishing in good faith things that turned out to be less than completely accurate. Part of the reasoning was that public officials, or other figures accustomed to the public eye, have adequate means to grab public attention, correct inaccuracies and defend themselves.
DeSantis admitted as much about himself at his showy event. But, seeking a supposed example of hideous abuse by Big Media, he trotted out a young man who, as a Kentucky high school student a few years ago, was initially reported as having mocked a Native American man near the Lincoln Memorial. The student denied he did so but was nonetheless subjected to brutal criticism on social media and talk shows, which was no doubt traumatic for him. The scene at the memorial was chaotic and unpleasant, and it’s still not clear exactly who did what to whom that day. It does seem, though, that some media outlets got out well over their skis in painting the young man as the villain.
DeSantis was exploiting the Kentucky man he claimed to be supporting. The then-teenager was not a public figure at the time of the incident, so the stricter Sullivan standard of “actual malice” that the governor wants to obliterate didn’t apply. What’s more, the young man had his day in court, suing various media outlets for a total of more than $1.2 billion, earning settlements from The Washington Post, CNN, and NBC News.
DeSantis also blundered by inviting to his bogus “panel discussion” one Libby Locke, a litigator who specializes in libel claims. Yes, Locke did vent on cue about Sullivan, a precedent which clearly makes it harder for her to win the lawsuits that earn her a good living.
But her presence also pointed to the huge collateral damage that MAGA conservatives risk in their overheated quest to change libel law and supposedly bring the Times et al. to heel.
A current client of Locke’s firm is Dominion Voting Systems, which is suing Fox News for trumpeting the wild claims by Sidney Powell, Rudy Giuliani, and others that the company was at the center of the alleged fraud in the 2020 presidential election. One delicious irony here is that Fox is clinging to a Sullivan defense in this lawsuit, saying, in effect, “Hey, the President was echoing these claims, which made them newsworthy. How were we supposed to know they were tinfoil-hat crazy?”
Still, Dominion and its lawyers have had some pretty nice moments during discovery, uncovering internal Fox memos and emails suggesting that at least some people in the operation had serious doubts about the stuff that was being spouted on the network’s night-time lineup. In other words, evidence of “reckless disregard.”
This underlines the counterproductive folly of DeSantis’ cynical attack on freedom of the press. I’ll just say it straight out:
The sin of publishing or airing claims with reckless disregard for whether they are true is far more common among the captive media outlets of the right – from towering Fox News to partisan fantasists like the Gateway Pundit blog – than it is with the mainstream outlets that DeSantis fulminates about. If libel law changed the way DeSantis wants, more than one outlet that now fawns over him could someday be devastated by a bomb he unwittingly planted.
Look, most politicians dislike pesky journalists who dig into their mistakes and flaws. Lord knows Barack Obama did. But that routine whining is far less odious than DeSantis’ declared frontal attack on the First Amendment protections that enable journalists – and the whistleblowers who alert them – to expose corruption, lies, incompetence and cover-ups in high places.
Catering to DeSantis’ titanic, authoritarian ego – so similar to that of his model and future primary foe, Donald Trump – should be an infinitely lesser priority for Americans than making sure legitimate journalists of all political stripes still can act as the watchdogs we so desperately need them to be.
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Chris Satullo, a civic engagement consultant, is a former editorial page editor/columnist at The Philadelphia Inquirer, and a former vice president/news at WHYY public media in Philadelphia