DeSantis wants to roll back freedom of press
NEW YORK » When Gov. Ron DeSantis of Florida convened a roundtable discussion about the news media this week, he spared no effort to play the part, perching at a faux anchor's desk in front of a wall of video screens while firing questions to his guests like a seasoned cable TV host.
But the panel's message was as notable as its slick presentation: Over the course of an hour, DeSantis and his guests laid out a detailed case for revisiting a landmark Supreme Court decision protecting the press from defamation lawsuits.
DeSantis is the latest figure, and among the most influential, to join a growing list of Republicans calling on the court to revisit the 1964 ruling, known as The New York Times Company v. Sullivan.
The decision set a higher bar for defamation lawsuits involving public figures, and for years it was viewed as sacrosanct. That standard has empowered journalists to investigate and criticize public figures without fear that an unintentional error will result in crippling financial penalties.
But emboldened by the Supreme Court's recent willingness to overturn long-standing precedent, conservative lawyers, judges, legal scholars and politicians have been leading a charge to review the decision and either narrow it or overturn it entirely.
DeSantis, a likely Republican presidential candidate, put the effort at the center of his war against the mainstream media.
“How did it get to be this doctrine that has had really profound effects on society?” he said at the event, which featured two libel lawyers known for suing news organizations and a conservative scholar who recently published an essay titled “Overturn New York Times v. Sullivan.”
Under Sullivan, public figures who sue for defamation must show not only that a report contained false and damaging information but also that its publisher acted with “actual malice” by knowing that the report was false or by recklessly disregarding the truth.
The precedent applies not only to mainstream media organizations but also to individuals, companies, partisan websites and podcasters that could face far greater exposure to defamation lawsuits.
During the panel discussion Tuesday, DeSantis accused the press of using Sullivan as a shield to intentionally “smear” politicians and said the precedent discouraged people from running for office. Would the current Supreme Court, he asked the panelists, be “receptive” to revisiting the case?
Donald Trump, who talked of changing libel laws as president, raised the same question in a court filing in December. The motion, part of a defamation lawsuit Trump filed against CNN, asked whether the high court “should reconsider whether Sullivan's standard truly protects the democratic values embodied by the First Amendment.” His lawyers called the lawsuit, which accuses the network of unfairly comparing Trump to Adolf Hitler and seeks $475 million in damages, a “perfect vehicle” for revisiting the precedent.
CNN, which declined to comment, has denied the accusations and in November moved to dismiss the case. That motion is still pending.
A defamation lawsuit filed by Sarah Palin, the former governor of Alaska, against The New York Times was once seen as a potential test of the “actual malice” standard first set by Sullivan. But a jury rejected her claim. The case is on appeal.
It's not clear whether the court is ready to revisit Sullivan. Two justices on the conservative-majority Supreme Court, Clarence Thomas and Neil Gorsuch, have indicated their willingness to roll back the ruling in written dissents in recent years, but it would require two more votes for a challenge to even be heard.
In June, the court declined to hear a defamation suit brought by a Christian organization against the Southern Poverty Law Center, which had called it a “hate group.” Thomas dissented, writing that he “would grant certiorari in this case to revisit the `actual malice' standard.”
Floyd Abrams, a First Amendment lawyer who represented the Times in the Pentagon Papers case in the early 1970s, said there was “a growing sense in the conservative community that this is their day to set aside New York Times v. Sullivan.”