The Supreme Court this morning denied review in a case where an alleged Albanian mafioso sued an author for slander. The lower courts held that the alleged mafioso was a public figure, triggering heightened proof requirements for slander under NYT v. Sullivan. The Court denied review, but Justices Thomas and Gorsuch published dissents. Thomas has dissented on the same ground in previous cases, but I think this is the first time he has had another justice join him. If @Mr. Deez can get himself and one other like-minded jurist appointed to the Court, there will be the required 4 votes to grant certiorari. Here is a link to the Order List (07/02/2021) (supremecourt.gov). The two dissents begin at pages 41 and 44.
Gorsuch nails the problem. "The bottom line? It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy. See id., at 778–779. Under the actual malice regime as it has evolved, “ignorance is bliss.” Id., at 778. Combine this legal incentive with the business incentives fostered by our new media world and the deck seems stacked against those with traditional (and expensive) journalistic standards—and in favor of those who can disseminate the most sensational information as efficiently as possible without any particular concern for truth. See ibid. 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 has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable." It's time for this ruling to go. Letting dishonest people and institutions damage people and get off with the "I'm stupid" defense n this day and age is outrage.
In this day and age, being attacked online (brand attack) is akin to attacking one’s property. This should be resolved in civil court with the court giving out fines for guilty folks ($100 per false tweet?). The criminal code shouldn’t be involved unless for slander or defamation.
This issue is only about civil actions, not criminal. Here's the breakdown. Defamation is basically a statement of fact that damages someone's reputation. We used to distinguish between the spoken word (slander) and the written word (libel), but we now just combine them into the tort of defamation. Some countries have criminal defamation. A few states may have it on the books, but they are rarely enforced. We're really talking about civil lawsuits. Prior to New York Times v. Sullivan (1965-ish), some states had very loose defamation laws in a few respects. First, some states didn't require the plaintiff to prove that the defamatory statement was false. Instead, they made truth an affirmative defense that the defendant had to prove. Second, some states imposed strict liability, meaning that it didn't matter if the defendant knew the statement was false or even should have known it was false (negligence standard). Third, in some states, a finding of "nominal damages" (meaning a token $1 award to signify no financial loss) was sufficient to support a punitive damage award. So it was possible for a newspaper to print something that injured someone's reputation that reasonably seemed true (or possibly even was true) and caused no financial harm and get hit with a big punitive damage award. States also didn't distinguish between statements made against private citizens and public officials. Then came the civil rights movement and the Warren Court. National media outlets were covering protests and clashes with the police in the South, and as you would assume, they were overwhelmingly hostile to the southern political leaders and favorable to activists. One of the ways, southern leaders fought back was when a media outlet got something wrong, they'd sue them for defamation in state court where juries weren't happy with smug, out-of-state media defendants who looked down on them. Just imagine some handjob like Jim Acosta testifying in front of a bunch of rednecks. That's not going to end well. To the rescue came the Warren Court who held it was unconstitutional to hold defendants liable for defamation against public officials and public figures unless the plaintiff can prove that the defendant knew the defamatory statement was false or recklessly disregarded whether or not it was false (the so-called "actual malice" standard). Well, a standard like that basically creates an "I'm stupid" defense, and without a smoking gun, a public official or figure virtually has no chance. That's why our political media is **** now. They can repeatedly print ********, and there's almost no risk or downside.
It depends on the jurisdiction. In Texas state court (where defamation cases would usually be tried), you file a written demand for one and serve it on the opposing party. I included it in my original pleading when I filed suit, and that gets attached to the citation (the document you get served with that says "You have been sued"). But understand that before you can take a case to a jury, a defendant can move for summary judgment (asks the court to render judgment as a matter of law without empaneling a jury), which will almost surely happen in a defamation case involving a public official or figure. To overcome summary judgment (which only means that you get to try your case before the jury, not that you win), a defamation plaintiff would have to present evidence showing that the defendant knew the defamatory statement was false or recklessly disregarded whether it was false. It could come in the way of a written document (such as an email from the reporter saying, "yeah I know it's BS; let's print it anyway.") or a witness statement under oath (someone testifying by affidavit or deposition, "the reporter told me he knew the story was BS" or "the reporter told me he didn't care if the story was BS"). What do you think the odds are that you're going to find evidence like that? The reporter and newspaper people usually aren't dumb enough to put anything like that in writing. Furthermore, anybody who testifies or gives a statement to that effect will basically lose his career, so you aren't going to get a lot of cooperation from the reporter's coworkers or superiors. As a general rule, if your case's survival depends on evidence that as a practical matter has to come from the defendant or people within the defendant's control, you're not likely to win. Might the reporter admit that he knows something is BS to someone outside of work? Perhaps, but finding that out and finding that person is going to be like "discovering plutonium by accident," to quote George Costanza.
For what it's worth, I never gave much thought to whether NYT v. Sullivan was good law, until @Mr. Deez began making a point of it here. I've come around to his view that the case is bad law, and gives too much protection to slanderers. That said, I also don't think carte blanche repealing it would be a positive step. Journalists wouldn't be able to publish anything controversial if they faced a libel lawsuit every time. Back in the day, when papers were exclusively local, the risk was smaller and more manageable. But with national newspapers/magazines and the internet, all bets are off. Applying "normal" defamation law would kill the media. I'm not sure exactly where the line should be drawn, but here's my thinking. To get First Amendment protection, a journalists should bear the burden to prove that they had a well-informed, good-faith belief that what they published was true. This would expose the reckless ****-flingers (on both sides) to liability, and would prevent journalists from hiding behind "unnamed sources". If you can't convince a jury that (a) you did reasonable due diligence and (b) based on that due diligence, you thought your article was accurate, then you should be exposed to liability. Of course, there's also the question of whether this standard should be imposed by the judiciary, enacted by Congress (or each state legislature separately??), or left to the people by way of a Constitutional amendment. I'm okay with the courts doing it, but that's because I'm not an originalist.
