The readings for this week discuss constitutional protection for the free press, especially as this relates to protection against censorship and the borders between the protections provided by the First Amendment and defamation.
To begin, let’s examine the first prompt for the post this week:
In what instances should the First Amendment be a shield for reporters and news outlets? Should it not be a shield in any instances? If so, please explain.
There are many examples of the First Amendment providing essential protection for the press against censorship and interference. I’d like to highlight several from this week’s readings.
First, in Grosjean v. American Press Co. we see how the state of Louisiana imposed a tax on newspapers based on the extent of their circulation. The decision cites this as another form of censorship and evokes memories of the Stamp Act and the causes of the American Revolution. Importantly, this decision affirmed the value of a free press “A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.” Further, it expands the protection from censorship through “previous restraint” to an “untrammeled press”, specifically the press from general interference from the government, regardless of the form that interference may take.
“Judge Cooley has laid down the test to be applied —
‘The evils to be prevented were not the censorship of the press merely, but any action of the government by (Page 297 U. S. 250) means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.’”
Second, in The New York Times V. Sullivan, we see protection provided by the First Amendment extended to include limitation on defamation and libel, at least for public officials. This protects speech, even libelous speech with false statements, unless the publisher acts with “actual malice,”
“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made here’s the actual malice statement *280 with “actual malice” that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
The case Gertz v Robert Welch Inc. discusses, somewhat problematically, the extension of this protection to private citizens.
The second half of this prompt asks “Should it not be a shield in any instances?”
The example in Palin v. New York Times re-affirms the broad protection provided by “Actual Malice” but a dissenting opinion described in Analysis: Palin’s legal fight with the New York Times is far from over, suggests, maybe alarmingly, that a conservative court may be revisiting this standard:
“Conservative Supreme Court Justices Clarence Thomas and Neil Gorsuch last year wrote dissenting opinions making clear they think the “actual malice” framework is outdated, but it is unclear if other justices would join them.”
To answer the second prompt: “Is the weaponized defamation lawsuit against members of the media concerning?” and “What are some counterarguments that a plaintiff would want to address in bringing a defamation suit?”
Yes, very! In our readings this week, I thought the implications of third-party funding for defamation lawsuits was especially alarming. The article The Weaponized Lawsuit Against the Media: Litigation Funding as a New Threat to Journalism proposes a four-pronged approach to managing this. In my opinion, the authors compellingly defend their conclusion that:
“Still, third-party funding of tort litigation against the media cannot-and should not-be prohibited. Instead, it should be transparent and accountable.”
However, this seems less than ideal. In particular, their proposal to facilitate “counter funding” to balance the playing field seems at best a necessary evil. I’m concerned that this would leave the press beholden to a different sponsor. Surely, funding must come with obligations.
For the second half of this prompt, I would focus on demonstrating “actual malice”. Assuming that foreknowledge of falsity would be difficult to prove, I may focus on showing that the defendant should have known better, and especially that they violated their own internal safeguards or processes in publishing the defamatory statement or handling the complaint against it.
For the third prompt, “Do anti-SLAPP statutes help us?”, I think the answer is that they’re certainly a useful step, and they should absolutely advocate for these. However, I also think it’s clear that they’re not helping enough. In an episode of “Last week tonight” on SLAPP lawsuits (link to video). John Oliver describes his program’s experience with a SLAPP lawsuit from a coal executive. Importantly, while HBO won the suit, the process was expensive, time-consuming and resulted in long-term damages from increased insurance costs. To re-frame the prompt, “Do SLAPP lawsuits successfully stifle free expression” the answer, unfortunately, is that they do.