Florida Governor DeSantis Brings Defamation Debate to the Political Mainstream
In line with the well-publicized conflicts between conservatives and various media outlets in recent years,[1] Florida governor Ron DeSantis last month brought a longstanding pillar of media and First Amendment law, defamation, to the forefront of mainstream politics. On February 7, DeSantis conducted a roundtable event including defamation litigants, legal contributors, and a journalist to discuss allegedly defamatory practices by the “legacy media” and to question the appropriateness of the defamation law status quo in advance of Florida’s impending Legislative Session.[2]
At the heart of this status quo is New York Times v. Sullivan,[3] a 1964 Supreme Court case which held that, in order for a public official to prevail in a libel case against a publisher, the official needed to establish (among other elements) that the publisher acted with “actual malice.”[4] To have met this standard, a publisher must have published defamatory material about the public official either “with knowledge that it was false or with reckless disregard of whether it was false or not.”[5] The decision reflected the idea that the media is vital to establishing an informed citizenry in a functioning democracy, and it should therefore be able to report about and criticize public officials without needing to worry about defamation lawsuits arising from accidental factual errors.[6] In 1967, the Court held that the “actual malice” standard also applied to statements about “public figures,” who are non-governmental individuals deemed to have an impact on public life similar to that of public officials.[7]
While DeSantis’ panel covered a range of alleged problems with current media practices and incentives, such as the rush to publish stories too quickly and the overuse of anonymous sources, the law and the “actual malice” standard in particular were major highlights.[8] One undercurrent of the event was the idea that, while irresponsible reporting about anyone is an issue, it is especially problematic when those without much of a public platform to rebut published material are victimized.[9] Accordingly, DeSantis remarked, “We want to be standing up for the little guy against some of these massive media conglomerates . . . a guy like me, I have a platform . . . but there’s a lot of other people . . . who get maligned unfairly, and then really don’t have the adequate recourse.”[10]
The main idea of DeSantis’ outlook is indeed at the core of current defamation law. In 1974, the Supreme Court held that, although private plaintiffs (i.e., not public officials or public figures) must prove that publishers of defamatory material acted with some degree of fault, that degree need not be actual malice.[11] States could instead choose to designate “negligence” as the appropriate standard for private plaintiffs.[12] However, the doctrine has grown more complicated over the years with the judicial designation of the “limited-purpose public figure.”[13] While not coined explicitly in Gertz, this label has been applied to what Justice Powell termed those who “have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”[14] Like a public official or “general-purpose public figure,”[15] the limited-purpose public figure also must meet the standard of actual malice.[16] Some courts have even recognized the “involuntary public figure” as another class of plaintiff facing the Sullivan hurdle.[17] While Justice Powell noted at the time that this type of plaintiff was “exceedingly rare,”[18] the rise of photos or videos of private individuals “going viral” on social media has altered the landscape.[19] Social media has also changed the parameters of defining limited-purpose public figures[20]—which types of social media posters may be considered to have “thrust themselves to the forefront of particular public controversies”[21]? High-profile libel lawyer Elizabeth “Libby” Locke, one of the governor’s panel guests, echoed this concern: “If anyone has a social media presence, you’re going to be considered a limited-purpose public figure, and so who the [actual malice] standard applies to is a huge swath of the American citizenry.”[22]
Although there was significant support among the panelists for overturning Sullivan and making it easier for those besides well-known public officials and figures to succeed as defamation plaintiffs,[23] libertarian journalist Michael Moynihan mentioned a key counterpoint: the potential effect of such a ruling on small media organizations.[24] Moynihan explained, “I worry about . . . media organizations, especially smaller ones, being kind of snowed under by lawsuits if people want to shut them up.”[25] The concern for the burden on media organizations, while obvious to traditional media defenders, may be more relevant to conservative politicians like DeSantis than the panel made evident. This is because (besides Fox News) many of the most popular “independent” or “conservative” media outlets, as opposed to “mainstream” targets of conservative criticism, are themselves relatively small. It is questionable whether media outlets like The Epoch Times, Washington Examiner, and Newsmax,[26] independent journalist subscriber platform Substack,[27] or the loosely organized members of the “Intellectual Dark Web”[28] would be as prepared as Comcast (NBC),[29] Warner Brothers (CNN),[30] Disney (ABC),[31] or the New York Times to handle an uptick in defamation suits. Overturning Sullivan might reduce careless reporting across the board, including by DeSantis’ least favorite media opponents, but at the expense of smaller conservative outlets becoming unable to bear the legal fees and defamation payouts which larger powerhouses might be able to absorb.
With Justices Neil Gorsuch and Clarence Thomas both having already expressed interest in revisiting the “actual malice” standard,[32] it will be interesting to see whether conservatives opt to broadly attempt to weaken media under the law or continue to grow alternative outlets within the existing media framework.
Footnotes
