The Florida governor and possible presidential candidate is the latest in a string of Republicans to target the Supreme Court decision that has long protected journalists accused of defamation.
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Gov. Ron DeSantis is among the most influential conservatives calling on the Supreme Court to revisit The New York Times Company v. Sullivan.
When Gov. Ron DeSantis of Florida convened a round-table discussion about the news media this week, he spared no effort to play the part, perching at a faux anchor’s desk in front of a wall of video screens while firing questions to his guests like a seasoned cable TV host.
But the panel’s message was as notable as its slick presentation: Over the course of an hour, Mr. DeSantis and his guests laid out a detailed case for revisiting a landmark Supreme Court decision protecting the press from defamation lawsuits.
Mr. DeSantis is the latest figure, and among the most influential, to join a growing list of Republicans calling on the court to revisit the 1964 ruling, known as The New York Times Company v. Sullivan.
The decision set a higher bar for defamation lawsuits involving public figures, and for years it was viewed as sacrosanct. That standard has empowered journalists to investigate and criticize public figures without fear that an unintentional error will result in crippling financial penalties.
But emboldened by the Supreme Court’s recent willingness to overturn longstanding precedent, conservative lawyers, judges, legal scholars and politicians have been leading a charge to review the decision and either narrow it or overturn it entirely.
Mr. DeSantis, a likely Republican presidential candidate, put the effort at the center of his war against the mainstream media.
“How did it get to be this doctrine that has had really profound effects on society?” he said at the event, which featured two libel lawyers known for suing news organizations and a conservative scholar who recently published an essay titled “Overturn New York Times v. Sullivan.”
Under Sullivan, public figures who sue for defamation must show not only that a report contained false and damaging information, but also that its publisher acted with “actual malice” by knowing that the report was false or by recklessly disregarding the truth.
The precedent applies not only to mainstream media organizations, but also individuals, companies, partisan websites and podcasters that could face far greater exposure to defamation lawsuits if the standard of proof were lowered.
Gov. Ron DeSantis and His Administration
- Reshaping Florida: Gov. Ron DeSantis, a Republican, has turned the swing state into a right-wing laboratory by leaning into cultural battles.
- Education: Mr. DeSantis, an increasingly vocal culture warrior, is taking an aggressive swing at the education establishment, announcing a proposed overhaul of the state’s higher education system.
- 2024 Speculation: Mr. DeSantis opened his second term as Florida’s governor with a speech that subtly signaled his long-rumored ambitions for the White House.
- Prosecutor Ousting: A federal judge ruled that the governor violated state law when he removed Tampa’s top prosecutor, but that the court lacked the authority to reinstate him.
During the panel discussion on Tuesday, Mr. DeSantis accused the press of using Sullivan as a shield to intentionally “smear” politicians and said the precedent discouraged people from running for office. Would the current Supreme Court, he asked the panelists, be “receptive” to revisiting the case?
Donald J. Trump, who talked of changing libel laws as president, raised the same question in a court filing in December. The motion, part of a defamation lawsuit Mr. Trump filed against CNN, asked whether the high court “should reconsider whether Sullivan’s standard truly protects the democratic values embodied by the First Amendment.” His lawyers called the lawsuit, which accuses the network of unfairly comparing Mr. Trump to Adolf Hitler and seeks $475 million in damages, a “perfect vehicle” for revisiting the precedent.
CNN, which declined to comment, has denied the accusations and in November moved to dismiss the case. That motion is still pending.
A defamation lawsuit filed by Sarah Palin, the former governor of Alaska, against The New York Times, was once seen as a potential test of the “actual malice” standard first set by Sullivan. But a jury rejected her claim after a trial early last year, and a judge denied her bid for a second trial. The case is on appeal.
It’s not clear whether the court is ready to revisit Sullivan. Two justices on the conservative-majority Supreme Court, Clarence Thomas and Neil Gorsuch, have indicated their willingness to roll back the ruling in written dissents in recent years, but it would require two more votes for a challenge to even be heard.
ImageThe Supreme Court has a conservative majority, and two justices have signaled they are willing to roll back Sullivan.Credit…Erin Schaff/The New York Times
Last June, the court declined to hear a defamation suit brought by a Christian organization against the Southern Poverty Law Center, which had called it a “hate group.” Justice Thomas dissented, writing that he “would grant certiorari in this case to revisit the ‘actual malice’ standard.”
Floyd Abrams, a First Amendment lawyer who represented The Times in the Pentagon Papers case in the early 1970s, said there was “a growing sense in the conservative community that this is their day to set aside New York Times v. Sullivan.”
Mr. Abrams and other legal experts point to the court’s recent decisions on abortion and gun rights as signs that it may be willing to revisit other longstanding precedents.
For Mr. Abrams, the attacks on what he considers “the gold standard in the world for the protection of the press” are thinly veiled attempts to shelter the country’s most powerful figures from the scrutiny that a healthy democracy requires.
“Essentially what they’re saying is that they want to crack down on American journalism,” he said.
Some of those pushing for a review of Sullivan argue that state legislatures, rather than the federal courts, should determine the scope and magnitude of libel law and press protections. Mr. DeSantis’s office last year drafted legislation that would have made it difficult, if not impossible, for journalists to use anonymous sources. (The bill was never filed to the Florida Legislature.)
Another complaint among critics is that subsequent rulings by the Supreme Court allowed Sullivan to expand beyond public officials to include a larger group of public figures that includes people cast unwillingly into the spotlight by news events.
“I believe the pendulum has swung too far for the average person who is wronged by false media reports,” said Harmeet Dhillon, a California lawyer who specializes in defamation cases and recently lost her bid for leader of the Republican National Committee.
Ms. Dhillon and others point to Nicholas Sandmann, who in 2019 found himself at the center of a national controversy after he was filmed facing a Native American elder at the Lincoln Memorial while wearing a MAGA hat. He sued multiple news outlets, including The New York Times, claiming they relied on the statements of the Native American elder without verifying them and subjected him to mass ridicule and derision. Mr. Sandmann reached settlements with CNN, The Washington Post and NBC. The lawsuit against The Times and other outlets was thrown out by a federal judge.
Mr. Sandmann, who has appealed the decision, appeared on Tuesday’s panel, which was staged in a studio outside Miami and streamed online. As Mr. DeSantis sat in front of screens reading “Speak the Truth,” Mr. Sandmann said his experience had “predetermined part of what the rest of my future is,” which is why, he said “we need to look at defamation.”
The attack on Sullivan by Mr. DeSantis underscores some conservatives’ increasing hostility against the mainstream media. But the crosscurrents of this issue reflect a more complex picture: Some of the outlets most favored by Mr. DeSantis and his allies have faced serious defamation challenges and have turned to the Sullivan case to defend against them.
Also on the panel was Libby Locke, a well-known media defamation lawyer who has pushed for judicial review of Sullivan, as well as state-level legislation that could make it easier for plaintiffs to bring and win libel cases.
Ms. Locke’s presence alongside Mr. DeSantis drew rebukes from many on the right, particularly Trump supporters, who noted that one of her firm’s clients is Dominion Voting Systems, the voting machine company that has been the target of unfounded accusations of election fraud from the former president’s backers.
Ms. Locke’s firm filed a $1.6 billion defamation suit against Fox News on Dominion’s behalf. Fox has invoked Sullivan as part of its defense. Last month, the Fox chairman Rupert Murdoch was deposed in the case, which is set to go to trial in April.
“DeSantis isn’t just trolling Trump. He’s now trolling us,” Ali Alexander, an organizer of the Jan. 6, 2021, rallies in Washington, wrote in a tweet on Tuesday.
In a statement, Fox said it was “confident we will prevail as freedom of the press is foundational to our democracy and must be protected,” adding that the lawsuit was “nothing more than a flagrant attempt to deter our journalists from doing their jobs.”
Ms. Locke’s firm, Clare Locke, declined to comment.
ImageSarah Palin lost her case against The Times last year.Credit…Stephanie Keith for The New York Times
Although his political rise was in part fueled by his appearances on Fox News, Mr. DeSantis has become one of the news media’s most aggressive critics. He rarely grants interviews to national, nonpartisan news organizations. A top communications aide, Christina Pushaw, has publicly dismissed reporters as “partisan legacy media” and “Democratic activists posing as a Capitol Press Corps.”
Mr. DeSantis’s office did not respond to requests for comment.
In 2021, Mr. DeSantis pointedly echoed the Sullivan standard in his statement blasting a “60 Minutes” report about the state’s Covid-19 vaccine distribution contract. Although he never sued, he accused the show’s network, CBS News, of “malicious intent and a reckless disregard for the truth.” At the time, CBS News said it stood behind its reporting and this week declined to comment further.
On Tuesday, Mr. DeSantis brought up the “60 Minutes” segment, telling his viewers that he had been a victim of a “hit piece” that was “fundamentally unfair.” He added that he has “a thick skin” but that others don’t have the platform he has to defend themselves, characterizing the debate as being about “standing up for the little guy against these massive media conglomerates.”
Eugene Volokh, a professor of law specializing in First Amendment issues at the University of California, Los Angeles, said that overturning Sullivan would go far beyond bolstering the rights of people like Mr. Sandmann and could have a chilling effect on news outlets worried about being sued for making unwitting mistakes while covering politicians and the government.
“The protection to criticize public officials is very important,” Mr. Volokh said. Although he would support reviewing subsequent Supreme Court rulings that expanded upon Sullivan, he questioned the motivations of politicians including Mr. DeSantis in calling for a complete reversal.
“Is this about the little guy or the big guy?” he asked.
Source: nytimes.com
