Can we reform the online culture of rampant libel without making it too easy to harass legitimate media?
by Edward Wasserman
August 23, 2021
5:30 AM
Graeme Sloan/Sipa USA via AP Images
Two strongly conservative Supreme Court justices have denounced the cornerstone constitutional opinion that has restrained libel suits for nearly 50 years.
Although nobody keeps score, it seems safe to say that our flourishing digital media routinely leave more people bruised and bloodied than any prior communication technology—more people than ever suffering personal disparagement, false allegations, character assassination, physical threats, and reputational sliming. Defamation, it seems, is booming.
Nevertheless, compared with lamentations over fake news and political bias, defamation doesn’t come up much in media criticism, even though it’s as common to social media as fraudulent solicitation is to email traffic. That reticence may change now that two strongly conservative Supreme Court justices have denounced the cornerstone constitutional opinion that has restrained libel suits for nearly 50 years, New York Times v. Sullivan, and it’s quite conceivable that their critique will pick up support alongside other right-wing hobbyhorses.
That the problem of defamation has been roundly ignored is curious in light of the deeply problematic character of discourse online—rule-free, unfair, inclined to be nasty, unencumbered by fact, sometimes merciless. There is no consistency or proportionality to the justice that’s meted out, little reflection, no guidelines when it comes to deciding which wrongs merit momentary shame (the dentist who killed Cecil the lion), which end careers (the white Central Park dog walker who tried to sic police on the Black bird fancier), which are untrue, and which are little more than cruel verbal attack stoked by misogyny or race hate. Then there’s a special class of viciousness directed at professional journalists, particularly women and even more particularly women of color, who draw grotesque vilification and incendiary threats of violence to themselves and even their families. Admittedly, I’m considering defamation more broadly than the law does, in that I include insulting characterizations and harsh abuse that may not contain falsity. But in scale and velocity, it still constitutes a profound cultural dysfunction and a source of unrequited harm that needs to be confronted.
Times v. Sullivan makes it practically impossible for people in the public eye to sue news media for libel.
Why does defamation flourish online? A confluence of reasons: a vast, newly enfranchised class of communicants who know little about the basics of fact-based reporting and reasonable comment, but who have axes to grind, disgruntled models to imitate, incentives to seek fame, and fingertip access to history’s most powerful channels; a regime of non-regulation in the U.S. that brings minimal restraint to online publishing; and a half-century of courthouse tolerance of falsity and reputational damage as acceptable costs of the scrutiny by an independent press that keeps the state honest and the public informed.
Embedded in one of the foundational laws of the digital age, the 1996 Communications Decency Act, is a carve-out that insulates online platforms from lawsuits even if they post outrageous libels. Unlike traditional publishers, which can be sued over false assertions that cause injury, the act’s Section 230 protects platforms such as Twitter, Facebook, and Instagram from defamation claims. That broad immunity opens an equivalently broad opportunity for harm. Hence, thanks to a revenue model that rewards audience reach, the platforms have sweeping capacity to profit from damaging people, while thanks to the law, they enjoy sweeping protection from having to answer for it.
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But disregard for reputational harm didn’t start with the internet; it’s not so different from how defamation has worked in the world of legacy media that today’s digital upstarts imagine they’re disrupting. Libel actions have all but disappeared. A New York Times lawyer wrote recently that the paper was sued for libel only 11 times between 2010 and 2017, and had not lost a libel suit for at least 50 years. The Media Law Resource Center found a steady decline in trials since the 1980s, from an average of 27 per year to three in 2018. Media defendants won about 40 percent of cases from 1980 to 2017, a proportion that climbed to 50 percent in 2017. On appeal, fewer than 1 in 10 awards that juries gave plaintiffs were upheld, and total damages were reduced 86 percent. Appellate courts threw out awards altogether in nearly 1 in 5 cases. As legal scholar David A. Logan concluded in a wide-ranging appraisal, “the threat that defendants today face from libel litigation is virtually nil.”
So Section 230 deepened a cushion of media impunity that had thickened in the last half-century and layered it over the embryonic social internet, helping turn it into the eye-gouging brawl it is now. The result is a culture—and a business model—that incorporates and even prospers on freedom from facts, broad acceptance of aggressive speech, and thirst for invective and ridicule. And it’s a media culture that extends a tradition of unreflected acceptance of reputational harm as a reasonable price for civic freedom, without asking why.
It’s fitting that a reappraisal of the reigning legal doctrine that grants generous license to news media to get things wrong, even when others suffer as a result, is beginning to stir now. After all, that license has been transferred from legacy media to the online world, where the scent of internet regulation is in the breeze. The reformist drive directed at the stupendous industrial might of the platforms is fed by a no less urgent fear that the abhorrent communicative culture they thrive on, one that poisons elemental civic practices and profits from mob rancor, needs fixing too. Revisiting the basics of media accountability should be a part of that repair, and it’s high time to ask, in the interest of accountability, whether the public is well served, online or anywhere else, by the limp state of defamation safeguards.
Section 230 deepened a cushion of media impunity that had thickened in the last half-century and layered it over the embryonic social internet.
That is a tricky question; protection from libel claims has long been hailed as emblematic of the freedoms an adversarial press must have. We now must decide whether that means extending that same expressive license, which arose to protect reporting by actual news organizations on matters of pressing public concern, to the teeming population of irregulars who use today’s communicative tools to describe and interpret contemporary realities in their own way. Without considering implications, we have empowered them to harm their fellow citizens with the same impunity that news media have had. Should we retain this status quo?
In itself, changing the law to make libel easier to sue over would probably not stem the immense online flood of defamatory content, and would likely yield only a modest crop of new lawsuits. But the courts still have a powerful role to play in teasing out broad standards for users and platforms alike, civilizing some of the more rambunctious ideas of what constitutes acceptable communication on social media. That might then encourage the platforms to do what they must: to confront the defamation they enable, which cries out for a response that would both serve the cause of fair play and offer moral guidance on using these miraculous new media to talk to, and about, each other.
THE CORNERSTONE OF U.S. DEFAMATION LAW is the nearly 50-year-old ruling, known as Times v. Sullivan, which with its progeny makes it practically impossible for people in the public eye to sue news media for libel, even when they are maligned by harmful falsehoods. Dissatisfaction with Sullivan has been gathering on the right since at least January 2018 when President Trump denounced “our current libel laws” as “a sham and a disgrace.” A year later, Associate Justice Clarence Thomas wrote a solo concurrence critical of Sullivan, but he was largely ignored until March 2021, when D.C. Circuit Judge Laurence Silberman, a longtime GOP stalwart and mentor to Thomas, declared it was time to revisit the pivotal ruling. Silberman’s critique was widely reported, though reading his attack was like stepping on a dead bee—slightly painful but carrying little menace. But it seems the bee was only stunned, and in early July Silberman was cited approvingly in a pair of dissents, one written by Thomas and the second by Justice Neil Gorsuch. So with two justices on the solid conservative majority now calling for change, there’s reason to suspect that defamation reform is stirring to life. If so, the challenge of recalibrating our formidable barriers to libel claims so that they make sense in the digital age may yet become the subject of vigorous debate.
It’s fitting that a reappraisal of the reigning legal doctrine that grants generous license to news media to get things wrong is beginning to stir now.
Times v. Sullivan stiffened the legal standard that public officials must meet to win a defamation case. Not only must the offending article be false—under longstanding U.S. law there is no libel without falsity—it must also be the product not of negligence but of “actual malice”: That means the publisher either knew it was false or showed “reckless disregard” to indications it wasn’t true. In his critique, Judge Silberman said that applying the “actual malice” standard cavalierly ignores 150 years of jurisprudence in which libel was handled under common-law principles strongly protective of one’s right to a reputation unsullied by damaging falsehood. Silberman then pivoted to a canonical broadside against “the ideological consolidation of the press” as irredeemably liberal, and asserted that freeing libel law from Sullivan’s shackles would demonopolize the news media. He didn’t say how that would happen (since it wouldn’t), but I admit to some glee in seeing a man of the right, which for decades has campaigned to curb lawsuits over everything from shoddy products to medical bungling, argue that what America really needs is more litigation.
Strange as it might seem, in an important way Silberman’s analysis was faithful to the logic of Sullivan, in that he too evaluated libel as chiefly a political and institutional challenge—not from a concern about how smeared civilians might get justice, but from a fear that defamation claims might muzzle the press. In Sullivan, the Supreme Court backed The New York Times in a face-off with segregationists in Montgomery, Alabama. The plaintiffs had been awarded $500,000—a state damage record at the time—for minor errors of fact in a paid Times advertisement published in 1960 that condemned local police for brutalizing civil rights protesters. The plaintiff, public-safety chief L.B. Sullivan, wasn’t named in the ad and never specified the damages he suffered, but he claimed people would know he was the target, identified factual errors, sued the Times, and won. Four years later, the high court reversed, 9-0. Its ruling was solidly grounded in constitutional logic: Private lawsuits brought by officials claiming they were personally harmed by flawed reporting can be, as a practical matter, indistinguishable from efforts by the state to suppress criticism and sidestep the First Amendment’s core prohibition against restricting the press.
By 1964, some $300 million in libel suits had been filed by Southern officials against Northern media, and defamation was plainly being harnessed as a tool of governmental repression. (Silberman agrees that a potent threat of lawsuits would bridle the press, but believes that would be a good thing, since the press now has run wild in promoting leftist conformity.) So the nexus between defamation and political expression was at the core of Sullivan’s logic: To win a libel case, public officials would henceforth have to meet an exacting standard, essentially that the press knowingly lied. Mere reporting slipups won’t suffice; the press needs to be free to pursue the constitutional goal “that debate on public issues should be uninhibited, robust, and wide-open,” as Justice William Brennan wrote for the unanimous Court.
But Sullivan’s reach quickly broadened. Soon, its protections were no longer confined to reporting with an explicitly civic focus. The 1964 ruling came on a case brought by “a public official against critics of his official conduct” (emphasis added), but within three years the Court extended its logic to apply not just to public officials, but to “public figures.” The pivotal pair of 1967 cases involved people with public import—the football coach of a state university, and a retired Army officer who supervised the campus response to anti-integration protests—people who were not public officials, but who, in Chief Justice Earl Warren’s words, “are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.”
The standard was moving toward shielding the press from answering for reputational harm suffered by just about anybody who has a reputation.
To win a libel case, public officials would henceforth have to meet an exacting standard, essentially that the press knowingly lied.
Over time, people who were deemed as falling on the wrong side of the public figure/private person demarcation line—and hence would have to prove actual malice—were defined as individuals in the public eye, regardless of whether they had governmental authority or an explicitly civic role. In a series of cases, the Court found that people with prominence unrelated to governance would also have to prove all-but-deliberate falsity to win. Some might be “limited purpose public figures” or “involuntary public figures,” if they’d been drawn unwillingly into the news. So it was that Richard Jewell, the security guard who sounded the alarm about the lethal bomb at the 1996 Atlanta Olympics, lost his case against The Atlanta Journal-Constitution, which pilloried him with belittling accounts that portrayed him as a stumblebum police wannabe who hungered for a moment of glory: He had lost his standing as a private individual—entitled to sue over mere negligence—because he had accepted interview requests from reporters.
That issue is what stuck in Justice Thomas’s throat when he authored his initial 2019 critique of Sullivan, which Judge Silberman saluted in his dissent. Thomas was commenting on a case brought by Kathrine Mae McKee, an actress who accused the entertainer Bill Cosby of raping her in 1974 when she was on tour with her then-boyfriend Sammy Davis Jr. Cosby’s attorney had responded to her accusation with a letter calling her a liar and, according to McKee, seeking “to embarrass, harass, humiliate, intimidate, and shame” her, and McKee sued for defamation. But courts found that because she was a “limited purpose public figure,” she would have to meet the exacting Sullivan standard, which doomed her case. The Supreme Court agreed, and so did Thomas, but he said he voted with the majority only because he had to apply Sullivan. In his concurrence, Thomas asked why that public/private determination should be required at all, and why it’s constitutionally necessary to make it “almost impossible” for a huge swath of citizens to sue for reputational harm. In McKee’s case, she qualified as a public figure because she had accused Cosby publicly and had later spoken to a reporter—and thereby “thrust” herself to the “forefront” of a matter of “public controversy.”
There are those who defend the logic of extending the Sullivan carve-out to, say, celebrities who are smeared in the media. It has been argued that people in the public eye have the capacity to command media attention to respond to defamation, so they are less disadvantaged by media libel and can refute harmful coverage. It’s also argued that the matters in which they figure often have broad public significance, like the coverage of governmental performance that Sullivan found warranted leeway for the press to stumble. Plus, courts have reasoned that a private person who courts public attention cannot then insist on protection when the notoriety they invited includes errors. That always struck me as very much like telling somebody who dresses expensively and fusses over their appearance that they have poor grounds to complain if someone gets mud on them.
Whatever the rationale, U.S. courts under Sullivan have edged closer to a sweeping determination that, in effect, since news puts people before a public audience, nearly anybody who cooperates in coverage—something we in the press encourage and depend on—relinquishes the right to demand elemental justice if the resulting coverage contains avoidable errors that hurt them.
AND SO TO THE INTERNET. Does the near-immunity of news media from libel claims still matter at a time when the legacy press has shrunk and is overshadowed by the social media platforms? It’s encouraging that the platforms face pressure to control the expression of race hatred, genocidal incitement, and the like, but we hear nothing comparable in respect to defamation. Justice Gorsuch’s own recent dissent raised the matter of online libel, and his observations about the vast societal danger posed by the flood of internet falsity were welcome (less welcome was his failure to mention, as he deplored the spread of fakery, the “stolen election” calumny sired by the president who put him on the bench). Gorsuch, however, tried to make the case that the spread of untruths online is linked to Sullivan’s attempt to safeguard the ability of reporters to bird-dog officeholders zealously. The connection is bogus. Falsehoods that cause personal damage are a minuscule fraction of online falsity, which is a massive cultural and technological failure, not the work of professional journalists who cut corners because they think some jurisprudential loophole lets them. Nor, as Gorsuch argues, does “actual malice” encourage editors to stop reporters from trying to verify stories out of fear that they might turn up discordant facts that, once ignored, could get them sued for “reckless disregard.” That plotline has zero empirical basis and, to anybody who has spent ten minutes in an actual newsroom, is ridiculous.
Modernizing defamation protections for the digital age will require measures to be taken at three institutional levels: by the courts, in revisiting Sullivan’s insurmountable burden of proof imposed on the very people most likely to be libeled; by Congress, in modifying Section 230 to restore to the internet platforms the same obligation to police their operations to minimize harm that any business must shoulder; and by the platforms themselves, which need to step up and create nimble mechanisms to hear and redress claims of reputational damage inflicted through their channels.
Although it wouldn’t rid the internet of falsity, revisiting Times v. Sullivan would be sensible. Journalism deserves freedom, not impunity. Banning meritorious claims from people slimed by shabby reporting simply because they have a public profile is indefensible on practically every level: It leaves them with unrequited injury, it creates an expectation of falsity in the public sphere, it sends a message of “anything goes” to citizen-journalists who join the increasingly participatory world of public-facing discourse—and who should be encouraged to speak with honesty, fairness, self-discipline, and respect. Confining the “actual malice” standard to officials and others whose actions have genuine public impact, and allowing all others to make cases that demonstrate that falsehoods were published and damage was done because reporters deviated from broadly accepted practices intended to ensure accuracy and care, need not undermine the First Amendment. Libel claims would be refocused onto assessing truth and harm, not arguing over the stature of the person who was wronged. Would there be more lawsuits? Some, but so what. Under our system of justice, people have rights and are entitled to seek redress. That’s why we have courts instead of dueling pistols.
What’s needed is a broad and decentralized administrative justice system funded and operated by the platforms.
Still, although those changes would have an exemplary influence, as a practical matter they would do little to square the immense and expanding circle of online harms. That’s because even if the legal standard were lowered, relatively few cases would ever promise damage awards sufficient to overcome the barriers to entry of our legal system and justify litigation. The challenge is more sweeping, and its colossal scale isn’t one that our, or anybody’s, courts can cope with.
Nor should they have to. Most defamation, though infuriating to the individuals involved, is minor. In the pre-internet days, facts were garbled, or somebody was misquoted or, more likely, quoted without crucial context; or they were not given a chance to answer accusations and now wanted the record set right and were furious because they couldn’t get anyone in the news organization to pay attention. By and large, their demands were modest: They wanted the error corrected, they wanted their good name restored, and they wanted an apology. Some may also have wanted compensation—though the money sought usually reflected the uncertainties of fact-intensive, long-shot litigation—but mainly they wanted to get on with their lives with reputation and dignity intact. I suspect that this remains true with today’s social media. People aren’t after much. They want to be heard, they want what’s fair, and they want it fast.
And right now, if the harm involves social media, they are out of luck. What’s needed is a broad and decentralized administrative justice system funded and operated by the platforms—once their Section 230 immunity is gone and they have no choice but to care—with resources commensurate with the challenge. It would match the scale and real-time agility of the platforms themselves, able to receive complaints, appraise them quickly, hear from the parties involved, and summon them to address the issues of fact or expression that gave rise to the grievance. The platforms perpetually describe themselves as online “communities”; this would be a genuinely community-based response, holding platform participants to account for postings that fail to uphold community standards of respect—for truth, for fairness, for each other. Although these tribunals would adjudicate, they wouldn’t be part of the judicial system, and they would be free to borrow heavily from the judiciary and apply the standards of defamation that seem most faithful to community principles. The sanctions they would exact would, accordingly, be confined to actions within the platform—compelling corrections, apologies, and behavioral reforms, and holding out the possibility of kicking offenders off if they defy the tribunals.
This would require major funding from the platforms, and until the Section 230 shield is removed they would have little incentive to pay up. Fortunately, they have nearly inexhaustible funds to draw from, thanks to their astronomical revenues from online surveillance and informational pillage. Questions of how to staff this system of justice and how to ensure its procedures are fair—and are followed—wouldn’t be simple. But the alternative isn’t pretty. It’s watching, powerless and resigned, as damaging and fallacious content becomes normalized, and the democratizing potential of the platforms is stunted by the refusal of sensible people to risk being heard in such a treacherous space. It’s watching as the promise of community continues to decay into the reality of all against all. Halting that slide warrants a bold response.
Edward Wasserman is professor of journalism and former dean of the Graduate School of Journalism at the University of California, Berkeley.
August 23, 2021
5:30 AM
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