I wasn’t able to fit this commentary in before the suit by Dominion Voting Systems against Fox News Network and Rupert Murdoch was settled. But I want to get back to it because I think it is important to understand how misguided speculation was that the Supreme Court might change the rule if the case got to them.
Before the Constitution and before the First Amendment, the old British rule applied here. It made the press responsible for defamation, meaning any damage to someone’s reputation. So the more damaging the truth, the more the press had to pay. It wasn’t until John Adams was president that the Alien and Sedition Acts protected true, though hurtful, statements. But the rule left no slack for mistakes.
In the 1964 New York Times v. Sullivan case the Court finally cut the press some slack. It held:
The constitution[] … prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
The original ruling was limited to public officials but the Court quickly expanded that to public figures.
The malice language confuses many. The Court referred to malice for historical reasons. But it defined malice narrowly as statements made “with knowledge that it was false or with reckless disregard of whether it was false or not.” The word “malice” adds nothing. Knowledge of falsity or reckless disregard of the truth became the legal standard after Times v. Sullivan. That meant that honest mistakes are protected but lies and reckless behavior are not.
David McCraw, a vice-president of the New York Times and former student of mine at Albany Law School, spoke in my class on Comparative Constitutional Law and explained how protective that standard is to the media by comparison with other countries which make them responsible for any mistakes and whatever injury to reputation they cause.
So Dominion charged Fox with violating what was already a very lenient standard. It didn’t just charge Fox with screwing up. It charged it with knowing falsehood, deliberately lying, or reckless disregard of the truth, by repeatedly reporting what they knew to be false, reporting as true what they told each other privately was false, and what the evidence they had showed was false. Fox had plenty of slack for mistakes. It could have told its audience that people were making claims and spreading rumors that Fox was unable to substantiate. What it couldn’t do was report rumors and claims as fact that it knew were false or didn’t bother to check. Fox was going too far by reporting fantasy as news. It violated a very lenient form of press responsibility. Condoning reckless falsehoods or deliberate lies has serious consequences.
Overruling Times v. Sullivan would have imposed a stricter obligation on Fox and wouldn’t have helped it. It’s important to recognize that Fox was not being held to a strict standard; it was being held to a very generous standard, and it apparently couldn’t even meet that one.
I think the Court got it right in Times v. Sullivan but some media outlets still fail to live up to their obligation for honest reporting.
— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on May 23, 2023.
Constitutionalism and Democracy 