Sept. 6, 2023 – Recent libel lawsuits filed against news outlets highlight a First Amendment issue that at least one U.S. Supreme Court justice thinks is ripe for revisiting.

In August, the New York Times reported that “some public officials have started using the legal system as a way of hitting back” against news sites in the U.S.

For instance, Mississippi’s governor recently filed a defamation lawsuit against Mississippi Today. The outlet had been covering a story on the misspending of welfare funds to finance a volleyball facility at the University of Southern Mississippi.

Former Green Bay Packer quarterback Brett Favre also got caught up in that scandal and sued two sports broadcasters for defamation.

These types of cases, including one in Wisconsin, illustrate a trend that may eventually end up back at the U.S. Supreme Court, according to some legal commentators. But others say the court is not likely to overturn longstanding precedent in this area.

Landmark Libel Ruling

In New York Times v. Sullivan, 376 U.S. 254 (1964), the U.S. Supreme Court held that a plaintiff who is a public figure must prove by clear and convincing evidence that the allegedly libelous statement was made with “actual malice,” defined as “with knowledge that it was false or with reckless disregard of whether it was false or not.”

The decision in effect “constitutionalized” libel law by extending a measure of First Amendment protection to libelous speech, which had previously been governed by the common law of the various states.

New York Times arose out of tumult of the Civil Rights Era. To raise money for the legal defense of Rev. Dr. Martin Luther King, Jr., civil rights leaders took out a full-page ad in The New York Times.

The ad described the actions police had recently taken against peaceful protestors in Montgomery, Alabama.

While most of the description was accurate, it contained some exaggerations – for instance, that police had “ringed” a college campus where a protest was taking place. More importantly, the ad contained several falsehoods.

The ad stated Dr. King had been arrested seven times in Alabama, when he’d really been arrested four times. It also stated that the police had padlocked students inside a dining hall “in an attempt to starve them into submission.”

L.B. Sullivan, the Montgomery public safety commissioner, wasn’t mentioned in the ad but felt that the ad’s criticism of the police was a criticism of him. Sullivan asked the Times to retract the ad – a prerequisite for filing a libel claim under Alabama law.

The Times refused to retract the ad, so Sullivan sued the paper for libel in state court. A jury awarded Sullivan $500,000 in damages and the Alabama Supreme Court affirmed.

The Times appealed to the U.S. Supreme Court.

Uninhibited Debate a Virtue

In a unanimous decision, the U.S. Supreme Court struck down the Alabama Supreme Court’s decision. Justice William J. Brennan wrote the opinion.

“Libel can claim no talismanic immunity from constitutional limitations,” Brennan wrote near the beginning of the opinion. “It must be measured by standards that satisfy the First Amendment.”

Furthermore, given the principles underlying the First Amendment’s free speech guarantee, Justice Brennan wrote that “we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

By itself, the defense of truth to a charge of libel wasn’t enough to ensure the free exchange of debate and ideas so central to the First Amendment, Brennan reasoned.

“A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions – and to do so on pain of libel judgments virtually unlimited in amount – leads to a comparable ‘self-censorship,’” Justice Brennan wrote.

‘Masquerading as Constitutional Law’

In several Supreme Court decisions issued over the last four years, Justice Clarence Thomas has called for reconsidering the “actual malice” standard.

“New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Thomas wrote in 2019, in a concurrence to a denial of a petition for certiorari filed by a woman who’d accused Bill Cosby of sexual assault in 2014.

“We did not begin meddling in this area until 1964, 175 years after the First Amendment was ratified,” Justice Thomas continued. “The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”

Thomas, who was appointed to the Supreme Court in 1991, renewed his criticism of New York Times in a decision handed down in June of this year.

In Counterman v. Colorado, a man was convicted under a state statute that makes it unlawful to use threatening language that could and does cause emotional distress.

The U.S. Supreme Court vacated the conviction, holding (7-2) that the First Amendment required the state to prove that the defendant subjectively understood the threatening nature of the statements – that he or she consciously disregarded a substantial risk that the conduct at issue would cause harm to another. The state did not do that.

Thomas dissented. He pointed out that other justices, including current Justice Neil Gorsuch, have called into question New York Times and subsequent cases extending its holding.

“It is thus unfortunate that the majority chose not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this Court’s jurisprudence,” Justice Thomas wrote.”

‘Likely to Survive’

Erik Ugland, associate professor of digital media and performing arts at Marquette University, is a lawyer and scholar who specializes in media law issues.

Erik Ugland, associate professor of digital media and performing arts at Marquette University, is a lawyer and scholar who specializes in media law issues.

He looks at the Counterman decision and thinks the prospect of the U.S. Supreme Court revisiting New York Times is on the wane.

“What was interesting in Counterman was that Gorsuch didn’t weigh in on New York Times, as he has in the past,” Ugland said. “Barrett could have weighed in, but she didn’t.”

“And the other justices essentially relied on the rationale for New York Times in the majority opinion,” Ugland said.

“Then, there was a concurring opinion by Sotomayor, which was a very emphatic affirmation of New York Times. A lot of people are reading the tea leaves and thinking that New York Times, despite Thomas’ campaign and Gorsuch’s endorsement of overturning it, is likely to survive.”

A World Without New York Times

According to Ugland, an American jurisprudence without the New York Times “actual malice” standard would be one distinctly less favorable for the press – one that resembles British jurisprudence. In Great Britain, the burden is on the defendant to prove that the alleged libelous statement was true.

“It would be even worse than it is in the U.K. because the New York Times protection would be gone but you’d have the risk of predatory libel suits in states without anti-SLAPP laws,” Ugland said.

“Whereas, in the U.K., one thing that’s protective for defendants is the English rule of ‘loser pay.’ That’s a deterrent to people bringing frivolous claims."

SLAPP is an acronym that stands for “strategic litigation against public participation.”

According to the Reporters Committee for Freedom of the Press, anti-SLAPP laws:

• allow defendants to move for dismissal before discovery begins;

• allow defendants who succeed on anti-SLAPP motions to recover attorney fees and costs;

• automatically stay discovery once a defendant files an anti-SLAPP motion; and

• allow for an immediate appeal of a denial of an anti-SLAPP motion.

The category of defendants who are entitled to file anti-SLAPP motions varies by state. To date, 30 states have enacted some form of anti-SLAPP law. Wisconsin is not among them, but anti-SLAPP legislation was recently introduced in Wisconsin.

The legislation would allow a defendant in a defamation lawsuit to file a motion to dismiss the lawsuit if the lawsuit arises from the exercise of the defendant’s right of petition or free speech in connection with a public issue.

If the judge dismissed the lawsuit, the bill would authorize the judge to award attorney fees and costs to the defendant.

Libel Insurance Not Always Available

Libel insurance exists as an additional safeguard for news outlets.

Chad Milton, a principal with Media Risk Consultants, LLC, says there are a handful of insurers in the U.S. that write libel insurance policies. Such policies cover legal defense costs in addition to damages.

However, Milton said, libel insurers look differently on online bloggers and online-only news sites because “there aren’t the kind of institutional controls that there are in an established newspaper, where there are editors over the reporters and there’s a business structure that gives it all a kind of gravitas that underwriters like to see.”

Open Records

Brian Spahn practices First Amendment and media law as a shareholder with Godfrey & Kahn in Milwaukee. He spends much of his time handling open records and open meetings issues.

Brian Spahn practices First Amendment and media law as a shareholder with Godfrey & Kahn in Milwaukee. He spends much of his time handling open records and open meetings issues.

Keeping meetings and court proceedings open to the public is an important part of governance, as well as the news media’s “ability and right to exercise their First Amendment rights to report on local and state government,” Spahn said.

“Unfortunately, from time to time, we’ve seen authorities resist their obligations under the public records law because the current law does not provide adequate leverage to requesters who do not receive the records that are subject to the law.”

In the area of open records, Senate Bill 117 (SB117) was introduced in the 2023-24 state Legislature last spring to change how courts handle issues involving fees surrounding public records requests, after the Wisconsin Supreme Court decision in Friends of Frame Park, U.A. v. City of Waukesha.¹

When an entity making a public records request must file a lawsuit to gain access to those records, they cannot at present recover attorneys fees without a court order.

“This bill would change it back to how it was before the Friends of Frame Park decision,” Spahn said. “It is the attorneys fees' aspect that is so important, because that is the primary leverage that a requester has to getting a public entity subject to open records law to follow the law.”

A Fundamental Case

Uglund said that, given today’s landscape, appellate courts may have to consider broadening the class of media actors who are entitled to the type of First Amendment protection historically afforded to newspapers and traditional broadcasters.

“If we’re going to be a free-speech society, we need to provide all people with broad cover so that there’s not a chilling effect on their speech,” Uglund said.

Professor Robert Drechsel, who taught journalism at the School of Journalism and Mass Communication at U.W.-Madison for three decades, said the enduring importance of New York Times is in part a function of the case’s deep historical roots.

“New York Times is a fundamental case, because ultimately it was based on the idea that the First Amendment should have done away with the law of seditious libel,” Drechsel said.

Drechsel cited the Sedition Act of 1798, which was enacted by a Congress dominated by the Federalist Party and signed into law by President John Adams, a Federalist.

The Sedition Act made it a crime to “print, utter, or publish … any false, scandalous, or malicious writing” about the government.

Adams and the Federalists used the law as a cudgel against their political opponents, members of Thomas Jefferson’s Republicans, and judges appointed by Adams upheld the use of the law.

The act was allowed to expire after Jefferson was elected president and his allies took over the House of Representatives in the election of 1800.²

Efforts by Congress to criminalize criticism of the government have reoccurred since 1800, Drechsel said.

“We’ve had similar things taking different forms in World War II and during the communist scare period,” Drechsel said. “It’s an idea that never really goes away. New York Times took a big step toward making it harder for that kind of thing to happen.”

Drechsel said efforts to chip away at the holding in New York Times have significant implications for our democracy.

“This is a challenge to something very, very fundamental, to start tinkering around with New York Times,” Drechsel said, “It has its roots in this concept that in a form of government like ours, there just shouldn’t be liability for criticizing the government.”

Endnotes

¹Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57.

² Jefferson issued pardons to those convicted under the Sedition Act.