Blog Entry #2: The First Amendment, Weaponized Defamation Lawsuits, and Anti-SLAPP Statutes
In what instances should the First Amendment be a shield for reporters and news outlets? Should it not be a shield in any instances?
The Supreme Court has established a number of landmark cases that include instances in which the First Amendment is a shield for reporters and news outlets. These landmark cases include Grosjean v. American Press Co.; The New York Times v. Sullivan; New York Times v. US, Washington Post v. US; and Gertz v. Robert Welch, Inc. Each case makes a strong argument as to how and why the First Amendment should act as a shield for reporters and news outlets.
Grosjean v. American Press Co. established that large newspapers (more than 20,000 distributed copies) are protected from state-imposed taxes made to specifically target them. The taxes specifically violate the freedom of press, as they were put in place to suppress free speech, like "taxes on knowledge"--both created with the intent to limit circulation.
The New York Times v. Sullivan and Gertz v. Robert Welch, Inc. both pertain to defamation and the press. The former established that public officials cannot sue unless if "actual malice" is proven (a reckless disregard for the truth or knowledge of falsity of a statement). The latter established that strict liability for defamation is unconstitutional; the plaintiff must prove that the defendant acted negligently; states are free to establish their own standards about liability surrounding defamatory statements about private individuals (as long as liability without fault is not imposed); and if the state standard is lower than actual malice, only actual damages may be awarded. Palin v. New York Times reaffirmed that public officials must prove actual malice (while also making sure that courts are not making decisions based on outside information).
New York Times v. US, Washington Post v. US, also known as the Pentagon Papers Case established that "security" is not a good enough reason to invoke prior restraint (an order that news be censored before publication), as the Founding Fathers intended a free press that has the ability to expose deception in the government. The Pentagon Papers exposed the workings of the Vietnam War that the government never intended for anyone to see.
With the landmark cases, there is a clear line of when the First Amendment can't or shouldn't act like a shield for reporters and news outlets. That line is "actual malice" and defamation pertaining to private individuals. The line being drawn with "actual malice" is important as it's similar to (or can be) disinformation--both have the deliberate intent of harm and/or manipulation of public opinion (I think it's agreed upon that both are wrong) or inciting action, which is Brandenburg v. Ohio established as unprotected by the First Amendment in the case of "imminent lawless action" being incited.
Some, like David A. Anderson, argue that defamation is more about an individual's image (so economic harm is not necessary to establish liability), but I find myself unconvinced that image alone is a good enough reason to punish a reporter or news outlets for an unflattering headline.
Is the weaponized defamation lawsuit against members of the media concerning? What are some counterarguments that a plaintiff would want to address in bringing a defamation suit?
I definitely think that weaponized defamation lawsuits against members of the media are concerning. They remind me of the financial burden tactic used in Grosjean v. American Press Co. The Weaponized Lawsuit Against the Media: Litigation Funding as a New Threat to Journalism by Lili Levi goes into great detail about this, and the most important (or concerning) aspect of the technique Levi discusses is how the lawsuits don't look for claims with merit. They just want to waste the money of reporters and news outlets to create heavy financial burdens. It's not about image or morality.
These lawsuits are also known as SLAPP: Strategic Litigation Against Public Participation.
The financial burden can lead to self-censorship and a reduction in accountability reporting--think no more ProPublica, Los Angeles Times "Story Stacks" or the Boston Globe discoveries that were turned into the film, Spotlight.
The only reasonable counterargument for a plaintiff, established above, would be defamation created with the intent of actual malice and harm.
Do anti-SLAPP statutes help us?
Essentially, yes.
Anti-SLAPP statutes help cases get dismissed quickly when it appears to be targeting protected speech or public participation, minimizing financial burden; help deter plaintiffs as quick dismissals and paying a defendants attorney is costly for them; allow defendants to recover attorney fees from the plaintiff, limiting financial burdens and creating additional deterrence; and include various forms of protected speech: public comments at government meetings, environmental advocacy, consumer reviews, peaceful protest and demonstration, and most relevant to this post, media reporting on public interest.
Essentially, anti-SLAPP statutes exist to protect free expression and free speech.