Free and fair press under siege
Badmouthing the press is a traditional civic entitlement for Americans of all political stripes, but it’s usually confined to toothless denunciations and applause lines in stump speeches. Actually constraining the news media is rare.
Now, however, the media are facing threats of a material kind — two $1 billion lawsuits against the country’s most popular news network, a movement to gut the landmark ruling that has kept libel claims at bay for nearly 60 years and a Supreme Court case that aims to strip internet platforms of a legal protection that has enabled them to flourish.
The challenges are very different, but each, in its own way, asks a basic question: How to keep the media both free and accountable? And together they constitute a historic moment, since their resolution may shape the media for decades to come.
First, the appalling revelations from the $1 billion defamation cases against Fox News. The suits were brought by two voting machine companies that Fox guests and hosts slimed for supposedly engineering the “stolen” 2020 election. Documents compiled by attorneys for one of the companies, Dominion Voting Systems, portray a deceitfulness, cynicism and moral squalor that would qualify Fox for its very own chapter of journalistic malpractice.
In emails and sworn depositions, Fox luminaries and executives were unanimous: The tales of vote fraud peddled ferociously by Trump flag-bearers after the election had no basis in fact. Still, Fox was determined to give them wide distribution, and Fox stars lavished air time on Trump cronies such as attorneys Sidney Powell and ex-New York Mayor Rudy Giuliani so they could spread the make-believe stories.
Why? Not to keep Trump in office, but to enable Fox to beat back upstart news organizations that were stealing its viewers with nonstop post-election outrage. Once Fox’s polling experts correctly called Arizona on election night for challenger Joe Biden — enraging the Trump White House — Fox’s brass grew terrified by evidence that its pre-eminence among the MAGA audience was slipping. In response, their marquee hosts allegedly opened their platforms to tales of phony ballots, votecount conspiracies and foreign meddling.
“It’s remarkable how weak ratings make good journalists do bad things,” said Bill Sammon, then the managing editor of Fox’s Washington, D.C., bureau, in December 2020.
Now, Fox’s best hope of prevailing in court may depend on arguing that sure, the reporting was false, but Fox couldn’t actually know it was false at the time because credible people were claiming otherwise.
That leads us to the second front in the current media assault.
Fox hopes to situate itself safely within the haven created by a 1964 Supreme Court case that has made it almost impossible for media to lose defamation suits for coverage of entities in the public eye. That precedent, the Roe v. Wade of libel, is the target of a campaign on the political right, which means that paradoxically, the doctrine that Fox is counting on is reviled by its own allies.
At issue is the legal standard called actual malice. The landmark Times v. Sullivan case said that to prove defamation, “public officials” — later widened to include “public figures” — must show not just that reporting was false, but that it was known or suspected to be false when it was published. Libel was deliberately made hard to prove; if not, the press wouldn’t have enough leeway to do its untidy job properly, bring fastmoving realities to light — and make mistakes.
Why this mattered in the early 1960s wasn’t because the court wanted to subject big shots to reputational harm. It was political. The case came out of Montgomery, Ala., when across the South libel suits were being used to keep the anti-segregationist press from hounding local officials — typically, as in Sullivan, by brandishing trivial errors that white juries were eager to punish with outsize damage awards.
Libel was political then, and it’s political now; defamation suits have all but vanished, and curbing the press via libel reform has been on the conservative agenda since at least 2018, when President Trump denounced libel laws as a “sham and a disgrace.” Two Supreme Court justices — Clarence Thomas and Neil Gorsuch — say they want to revisit Sullivan and make defamation cases easier for the press to lose. Now the call has been picked up by Florida Gov. Ron DeSantis, eyeing a presidential run, who supports legislation to enable more people to sue and wants to include confidential sources as evidence of malice.
This surging challenge to the media extends to a third front, the online world. There, libel law can’t be used at all now against the most influential entities of the internet age, the social media platforms. They have blanket immunity from damage suits under the 1996 Communications Decency Act and that protection is at the core of a Supreme Court case against Google-owned YouTube brought by the parents of an American student murdered in a 2015 ISIS-affiliated attack in Paris.
The immunity was meant to enable the then-infant platforms to post messages without taking responsibility for them. That it’s done, but it has also barred challenges to things the platforms themselves do, such as promoting sites deemed of interest to particular users. That so-called recommendation software makes the platforms money, but may also draw impressionable users to content, in this case, intended to recruit terrorists.
It’s plain that overturning that immunity would open internet platforms to a world of damage claims over the unimaginably varied content they carry. That could panic them into stifling expression and stop social media from operating at today’s colossal scale, transforming the internet. Maybe that wouldn’t be so bad, since it’s equally plain that having giant networks in which grossly harmful content is routinely commoditized with total impunity makes a mockery of basic notions of decency and fairness.
Media independence carries serious risks, but so do efforts to hold them accountable. The legal system exists to adjudicate harms, and the conundrum is to decide when it’s tolerable to deny the courts that job in the name of press freedoms. The solutions aren’t easy, but the challenge is unavoidable.