Are right wing attacks on press protections really just attacks on democracy? | Miraldi

Sarah Palin, the former Alaska governor and 2008 Republican vice presidential candidate, is good at getting in the eye of the storm. She raised a ruckus in 2011 when she identified 20 congressional districts that were in her “crosshairs,” a word identified with hunting. She meant to simply say these districts were possibly up for turnover to the Republicans, but it came across as if she was putting a gun target on candidates. 

When Rep. Gabrielle Giffords was subsequently shot and wounded at a campaign rally in Phoenix, some linked the shooting to the Palin advertisement, although there was no evidence the shooter saw it. Nonetheless, an editorial in the New York Times incorrectly linked Palin to the shooting. The Times immediately corrected its error.

Palin, never shy and desperately trying to hold on to political significance, sued a legendary media institution that for her was part of the “lamestream media.” A closely watched trial ensued. Was Palin’s reputation, already in tatters, so besmirched that she deserved damage money from the Times? By the way, the Times had not lost a defamation suit in 50 years.

A right-wing assault on the press

Or was the press protected by the 60-year-old Supreme Court decision, New York Times v. Sullivan, which is now under fire and attack from the political right. The decision says the press cannot be held liable in a defamation lawsuit with a public person, such as Palin, unless … and this is the biggie ... unless the public person, Palin, can prove that the Times knew what it published was false or was reckless in ascertaining the facts. Errors are inevitable in publishing, the court says, and therefore the press needs “breathing room” to promote the kind of “robust” debate democracy and self-governing demand. But if the error is purposeful, all bets are off. You will lose.

Palin lost when both judge and jury found she could not meet her burden of proof. More firewood for the flame of anger the political right is carrying against both the press and courts they insist are too activist. Some hoped the Palin case might make its way to the Supreme Court so it could re-evaluate if, in the era or social media, blogs, Google and podcasts, the Sullivan decision is outdated.

I think not. Lee Levine, a lawyer who has defended media clients for 40 years, put it bluntly: “An attack on Sullivan is an attack on democracy.”

Plain and simple. It’s an attempt to return to narrow defamation laws that precluded wide-open debate. But it is what some conservatives want. A way to muzzle the press and stop the kinds of stories that, for example, ProPublica has produced linking Justice Clarence Thomas to messy allegations he accepted lavish vacations from wealthy conservatives.

But for First Amendment watchers and guardians of democracy, we are — for good or bad — in a Golden Age of defamation. Alex Jones’ slander of the parents of Newtown, Connecticut, who lost 27 children cost him $50 million. He called the killings a hoax. Donald Trump’s verbal and physical assaults on E. Jean Carroll cost him $5 million in New York recently. He said he never assaulted her, prompting $2 million in defamation damages alone.

And Fox News’ deliberate lies about how the election in America was stolen — it was not — cost Rupert Murdoch $787.5 million in a settlement, the biggest judgment in defamation history.

I called Levine, who was an outside counsel for the Times in the Palin case, because he is one of the nation’s foremost defamation litigators. He has argued cases before the Supreme Court, written three First Amendment books and defended the likes of America’s premier investigative reporter, Seymour Hersh. He would not discuss the Palin case which is now on appeal.

But he did respond to critics who have in tried to neuter the 1964 Sullivan defamation court defenses that protect the press.

“A main reason we have a First Amendment press clause is because it is essential to democracy,” he said.

The people need to thoroughly discuss public policy and public people if self-governing is to work. And that is why political speech gets the highest level of protection.

Don’t get me wrong. There are — and should be — limitations to freedom of speech. A big one is: You don’t have the right to say (slander) or write (libel) something about a person or a company that damages reputation – and is false. But that exception is worrisome. It can hold the press accountable, but also chill reporting about important issues.

A year ago, Levine wrote: “Public officials and other powerful people and entities are now instituting libel actions at an unprecedented and deeply troubling rate.” 

But the “institutional movement to go after the press,” he told me in a telephone interview, “has slowed down.” Nonetheless, the hope of taking down the Sullivan defense remains a threat.  

He sees the settlement by Fox News in its defamation case with Dominion, a company that provided ballot boxes in the 2020 election, as a “resounding victory for the Sullivan defense” — and democracy. Fox News said repeatedly that Dominion was part of the effort to “steal” the election from Trump.

Fox settled because, not only was the election not rigged, the broadcaster’s own internal documents showed that Tucker Carlson and others knew it.

The Sullivan standard was never meant to allow “calculated falsehoods”— for that the press can and should be punished. Honest mistakes — as in Palin — are protected. Not deliberate falsehoods that damage.  

The mythology of the political right is that the tough standards of Sullivan, which provide considerable protection for the press, dissuades public officials from suing and winning.

“That the Sullivan decision led to an epidemic of character assassination is just false,” Levine said. 

And a research document put together by the Media Law Resource Center thoroughly rebukes this and other myths about Sullivan. Nonetheless, two conservative Supreme Court judges — Thomas and Neil Gorsuch — want to revisit Sullivan.

What is there to gain in repealing protections for the press?

Why the move to repeal protections for the press? Levine says it is complicated (like libel law actually) but that it “all starts with Trump. There was political hay to be made with demonizing the press.” 

In 2018 Trump said, “Our current libel laws are a sham and a disgrace.”

And it became a pivot point for the MAGA wing, although it actually dates back to Richard Nixon and Spiro Agnew in 1969.

While everyone agrees that protection of reputation is important, Levine points out, “Public officials and powerful people who sue the press often do so, not to be compensated for injury,” but “to punish the press for speaking truth to power and to dissuade it from doing so in the future.”

When the Sullivan case was decided back in 1964 a famous First Amendment scholar, Alexander Meiklejohn, called it “an occasion for dancing in the streets.”  People and the press could henceforth criticize those who govern without fear of retaliation. No cutting off the hand of the writer. 

But now some conservatives seek to stop the dancing. Don’t let them. “Uninhibited” debate is music to the ears of democracy.

Rob Miraldi’s writing on the First Amendment has won numerous awards. He taught journalism at the State University of New York for many years. Twitter: @miral98; email: rob.miraldi@gmail.com