Critical coverage? Or just flat-out media lies?
The New York Times wants to paint this as some sort of attempt to quash news coverage of Donald Trump. Their timing leaves a lot to be desired, however:
The small flurry of threatened defamation lawsuits is the latest sign that the incoming Trump administration appears poised to do what it can to crack down on unfavorable media coverage. Before and after the election, Mr. Trump and his allies have discussed subpoenaing news organizations, prosecuting journalists and their sources, revoking networks’ broadcast licenses and eliminating funding for public radio and television.
Actual or threatened libel lawsuits are another weapon at their disposal — and they are being deployed even before Mr. Trump moves back into the White House.
It is notoriously difficult for public figures like Mr. Trump to win defamation lawsuits. Under longstanding Supreme Court precedent — which Mr. Trump and some of his allies want to see weakened or overturned — plaintiffs must prove that a publisher knew a defamatory statement was false or acted with reckless disregard for its accuracy.
But that high bar has not stopped a wide range of politicians, business leaders and others from threatening or filing such suits — a strategy that often seems tailored to cause news outlets and individuals to rein in aggressive coverage of the public figures.
This article takes the tone of a David vs Goliath battle, but it’s the media that’s the Goliath when it comes to defamation cases, especially those involving politicians. They usually prevail in these matters for two reasons: the Sullivan doctrine and nearly unlimited legal resources. Politicians have to generally fund these lawsuits from personal funds while proving not just falsehoods but “actual malice,” while the media orgs that allegedly defame them have massive corporate resources to wear down the plaintiffs — including the NYT, but especially national TV outlets like CNN and ABC News.
That brings us to the bad timing. The Times published this just a day after ABC News threw in the towel — and $16 million — to settle Trump’s defamation lawsuit. Disney does not pay off defamation claims simply because their subsidiaries provided “critical coverage” of politicians, one can rest assured, especially when $1 million of that went to Trump’s lawyers. They have a large numbers of attorneys on staff and plenty of resources to hire the best outside counsel possible to defend themselves in a legal environment where the respondents have all of the advantages.
If Disney OK’d a $16 million settlement that includes a public statement of “regret,” those attorneys must have assured them that they would lose a lot more than that if the case went to trial. And the settlement notably came just before the discovery phase and the depositions of George Stephanopoulos and others involved in the March 2024 broadcast in which the ABC host made the defamatory and false statements about Trump.
How do we know that they were false and defamatory? ABC News and Disney paid out on the claim. Sixteen million dollars is a strong, if still tacit, admission of defamation.
The NYT’s cri de coeur aside, the risk for media outlets has nothing to do with “critical coverage,” or opinions in general. The risk comes from publishing false information as fact, and doing so knowingly. They run no legal risk at all otherwise and have massive advantages in such fights anyway. The Times’ hand-wringing over the kind of defamation liability that has always existed comes only because they recognize that “fake news” has become a business model for the Protection Racket Media. They want to shape the political environment to frame themselves as victims rather than perpetrators in that strategy.
One other risk exists for the mainstream media in this fight. The more they publish false information as “fact,” the more likely that a defamation claim will reach the Supreme Court. When that happens, at least one member of the court is already itching to reverse the 1964 Sullivan doctrine that requires a higher threshold of “actual malice” when it comes to public officials and other “public persons.” Clarence Thomas has written repeatedly on this topic, and Neil Gorsuch joined in that call in 2021’s Berisha v Lawson. Gorsuch wrote that Sullivan had so perverted the incentives that media orgs might dispense with fact-checking prior to publication as a defense:
But over time the actual malice standard has evolved from a high bar to recovery into an effective immunity from liability. Statistics show that the number of defamation trials involving publications has declined dramatically over the past few decades: In the 1980s there were on average 27 per year; in 2018 there were 3. Logan 808–810 (surveying data from the Media Law Resource Center). For those rare plaintiffs able to secure a favorable jury verdict, nearly one out of five today will have their awards eliminated in post-trial motions practice. Id., at 809. And any verdict that manages to make it past all that is still likely to be reversed on appeal. Perhaps in part because this Court’s jurisprudence has been understood to invite appellate courts to engage in the unusual practice of revisiting a jury’s factual determinations de novo, it appears just 1 of every 10 jury awards now survives appeal. Id., at 809–810.
The bottom line? It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy. See id., at 778–779. Under the actual malice regime as it has evolved, “ignorance is bliss.” Id., at 778. Combine this legal incentive with the business incentives fostered by our new media world and the deck seems stacked against those with traditional (and expensive) journalistic standards—and in favor of those who can dissemi nate the most sensational information as efficiently as possible without any particular concern for truth. See ibid. What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable. Id.,at 804. As Sullivan’s actual malice standard has come to apply in our new world, it’s hard not to ask whether it now even “cut[s] against the very values underlying the decision.” Kagan, A Libel Story: Sullivan Then and Now, 18 L. & Soc. Inquiry 197, 207 (1993) (reviewing A. Lewis, Make No Law: The Sullivan Case and the First Amendment (1991)). If ensuring an informed democratic debate is the goal, how well do we serve that interest with rules that no longer merely tolerate but encourage falsehoods in quantities no one could have envisioned almost 60 years ago? …
Again, it’s unclear how well these modern developments serve Sullivan’s original purposes. Not only has the doctrine evolved into a subsidy for published falsehoods on a scale no one could have foreseen, it has come to leave far more people without redress than anyone could have predicted. And the very categories and tests this Court invented and instructed lower courts to use in this area—“pervasively famous,” “limited purpose public figure”—seem increasingly malleable and even archaic when almost anyone can attract some degree of public notoriety in some media segment. Rules intended to ensure a robust debate over actions taken by high public officials carrying out the public’s business increasingly seem to leave even ordinary Americans without recourse for grievous defamation. At least as they are applied today, it’s far from obvious whether Sullivan’s rules do more to encourage people of goodwill to engage in democratic self-governance or discourage them from risking even the slightest step toward public life.
That’s how bad the situation in modern American journalism is at the moment. The fact that Disney paid out $16 million to settle Trump’s lawsuit demonstrates these incentives at work. That’s the real crisis in the Protection Racket Media, not the accountability that is long overdue.
