The Future of the First Amendment and Defamation
By Shawn Flynn
The beginning and often the end of the discussion about defamation in the United States has been the landmark Supreme Court decision New York Times v. Sullivan for several decades. But cracks are beginning to show in the bedrock of this once widely esteemed case, and it is time for this case to be retired as it no longer fits society today and lacks any constitutional foundation.
In essence, New York Times v. Sullivan stands for the principle that an action for defamation brought by a public official requires a showing that the statement in question was either (1) false, or (2) made with reckless disregard for the truth or falsity of the statement. While this does not sound like an odd standard now. The Supreme Court invented this standard from thin air to protect the media and individuals from judicial scrutiny when commenting on politics and political actions.
The investigation of facts before reporting is an obligation that once was so central to the media industry that “journalistic integrity” used to be a prized possession of the media elite. Far gone are the days that such a thing as journalistic integrity exists, as we live in a world driven by clickbait, catchy headlines, and an ever-shortening attention span. Retractions, an extreme rarity at one time, are issued often these days on Twitter where the retraction gets fractions of the views of the original statement.
As to individuals, principles of civility used to dictate calling someone a liar was enough to be held liable for defamation itself (and infringing upon one’s reputation significant enough to justify a duel). It is difficult to imagine a modern person that cares this much about what they say or is said about them in the ever-shortening attention span of our society.
What is to be done about this situation? Several notable jurists including two Supreme Court Justices have begun pushing in the direction of dismissing this archaic precedent and granting only the protections due to any person to the newspapers, media, and individual persons when they speak publicly about any other person. While this is in stark contrast to the current state of the law, it is exactly what the founding fathers envisioned when they created the First Amendment.
There was (and is) no specific protection in the First Amendment for the press that rises above that of any other person. Nor is there any provision limiting the protections of any person or class of persons from the same protections as anyone else. The principles underlying the decision to grant special protections when discussing public persons is not justifiable. In fact, a hard look at the standard reveals that it is flawed beyond belief. Sullivan would have you believe that since the individual being discussed is in the public limelight that they have either invited such statements or that the matter is so important that it is less important that what is said be true. Merely writing the ruling in that way is enough for most people to see how preposterous the ruling is as written. If something is important, then what is said on it should be more carefully considered and measured, not less.
In contrast to the stated goal of generating public discourse on important issues, this standard invites wild allegations so long as they are not false and have some modicum of possibly being true. Sullivan invites speech that muddies the waters on a multitude of issues and makes the truth all but imperceptible by burying it in a cacophony of legally protected statements of varying accuracy.
Instead, the Court should adopt a standard that forces people to do their homework before publishing matter that could be defamatory. Rather than erring on the side of allowing allegations (essentially treating people as guilty until proven innocent), the Court should require people making statements to live up to the same standard regardless of the person on whom they are commenting. This would live up to the standards of the founding fathers and engender a true civil discourse on the political issues of the day. Notably, such a standard may also serve to reduce the number of politically motivated acts of violence and riots around the country caused by a lack of information or misinformation believed by the general public by forcing more truth and less uncertainty into the public discourse.