Donald Trump is to chase CNN for $475 million for defamation, claiming the network associated him with Adolf Hitler and portrayed him as a Russian lackey. E. Jean Carroll is in turn to chase Trump for defamation in connection with the fact that he allegedly raped her. Mike “My Pillow” Lindell is for follow-up for $1.3 billion for defamation in connection with remarks he made about the 2020 presidential election being bogus.
And away from politics in America, a foreign English teacher in Thailand faces of them years in prison for defamation following a negative online review of a resort he stayed at.
What is defamation? Why is it so hard to prove in the US but relatively easy to prove in most other countries?
Libel is untruth commonly known as libel if printed and slander if said aloud. Under current law, five standards (we’ll stick to defamation but basically the same for slander) must be met to pass: 1) the defamatory statements were published; 2) the defamed person has been identified by the statements; 3) the remarks had a negative impact on the person’s reputation; 4) the named defendant wrote the defamatory statements; 5) the information published is manifestly false or was published with a reckless disregard for the truth. This means that it was published without investigating its accuracy. As we will see, this last criterion is very difficult to prove in America.
The standard for defamation cases between the media and public figures dates back to the 1964s Sullivan v. The New York Times Company, when the Supreme Court ruled that the First Amendment protects the media even when they publish false statements as long as they did not act with “actual malice”.
Civil rights leaders ran a full-page fundraising ad in the Time, detailing what they called “an unprecedented wave of terror” by police against peaceful protesters in Montgomery, Alabama. All the bad things they accused the cops of doing weren’t true, making the police look worse than they were. So LB Sullivan, in charge of cops in Montgomery, sued the New York Times for defamation, claiming to have printed something they knew to be false in order to damage his reputation. In an Alabama court, Sullivan won and the New York Times was ordered to pay $500,000 in damages.
The Time appealed to the Supreme Court and won. In a broader context, Sullivan freed northern journalists to aggressively cover racial issues in the south, free from the threat of libel suits. It represented a significant expansion of the First Amendment.
The Time argued widely that if a newspaper had to verify the accuracy of every criticism of every public official, a free press would be severely limited, and that the First Amendment required that the margin of error fall on the side of the media in cases of public officials (the things work differently if both parties are private citizens).
The Court responded by creating a new standard for defamation of a public figure – “actual malice” – defined in short as having knowledge that something was false or published with “Of reckless contemptfor the truth. Justice William Brennan affirmed America’s “deep national commitment to the principle that debate on public issues should be uninhibited, robust, and open.”
Free and open debate on the conduct of public officials, the Court reasoned, was more important than occasional factual errors that could damage the reputation of officials. The standards set out in Sullivan are why the New York Times hasn’t lost a libel case in America since. No other country has such high standards for defamation, which is why a Thai resort could win its case on something as low as an opinion of poor service.
A lot of journalism has gone downhill since Sullivan, and attitudes towards the media have changed. The media of 1964 set a goal of objectivity, or at least the appearance of it. In 2022, places like the Time wear their partisanship as a badge of honor and openly mock people like Mike “My Pillow” Lindell. They spend years wallowing in stories of great importance with a reckless disregard for the truth, whether it’s fake weapons of mass destruction in Iraq to start a war or Russiagate to try to overthrow a president. . The glory days of the Pentagon Papers or meticulous Watergate reporting are long gone.
The Supreme Court that drafted the liberal standards of Sullivan is also long gone. Last year, Justice Neil Gorsuch added his voice to an earlier statement by Justice Clarence Thomas questioning the standards set in Sullivan. Thomas, in a libel dissent case, specifically chastised the media for conspiracy theories and misinformation. He cited reports of “the shooting at a pizzeria said to be home to a satanic child sex abuse ring” and a Time article involving “online posts falsely labeling someone a thief, fraudster and pedophile”. Thomas wrote that “instead of continuing to isolate those who commit lies from traditional remedies like libel suits, we should give them only the protection required by the First Amendment.”
The new Conservative court may have such a revised standard in mind, but not today. Lindell recently had a libel appeal rejected by certiorari, when the Court refused to allow reconsideration of its decision by a lower court. Lindell is fighting a $1.3 billion defamation lawsuit filed in federal court by US Dominion, a company that makes voting machines used in several battleground states.
The company claims that Lindell defamed them, accusing them of helping to rig the 2020 election. international conspiracy ignored by the government but proven by a spreadsheet on an Internet blog is so inherently unlikely that only a careless man would believe it,” U.S. District Judge Carl Nichols wrote in his opinion. Nichols said Lindell’s accusation met the standard of reckless disregard for the truth.
Judge Gorsuch noted in his own recent CONTESTATION (not in Lindell’s case) that in 1964 the media was dominated by a handful of large operations that “regularly employed legions of investigative reporters, editors and fact-checkers…Network news has since lost most of their viewers. Their downfall has been accompanied by the rise of 24-hour cable news and online media platforms that monetize anything that generates clicks.
Gorsuch is clear that this requires a revaluation of Sullivan, and for the first time in a long time, a conservative court with a majority seated around him may be ready to do so. Still, they seem to be waiting for a stronger case than Lindell’s (a libel case involving Sarah Pallin also hasn’t been tried by a new standard) and in doing so will likely convict the My Pillow guy for his defamatory statements.