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Fake news, libel, and press protections against executive power

The press serves an important role in checking executive power in the American system. The first article in this series deals with libel suits against newspapers; the second will cover the publication of leaked materials (the so-called “Pentagon Papers”).

By Kristopher A. Nelson in

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The press serves an important role in checking executive power in the American system. Two cases, both involving The New York Times, are illustrative — and, since both involve the Constitution, neither can be changed by either executive orders or congressional lawmaking.

The first article in this series deals with libel suits against newspapers; the second will cover the publication of leaked materials (the so-called “Pentagon Papers“).

Recognizing the occasional tyrannies of governing majorities, [those who won our independence] amended the Constitution so that free speech and assembly should be guaranteed. — Justice Brandeis, Whitney v. California, 274 U.S. 357, 375 (1927)

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

This case arose out of the civil-rights movements of the 1960s. The plaintiff, an Alabama public official named L.B. Sullivan, sued for libel, claiming that an advertisement in the New York Times falsely defamed him. He won a half-million dollar judgment in state court after proving that the advertisement was both false and damaging to his reputation.

Unfortunately for Sullivan — and for other public officials like, for example, a president of the United States — a unanimous Supreme Court overturned the Louisiana decision, holding that “the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct.”

Critics, including those in the press, may write and publish material harmful to the reputation of public officials even if that material is false — unless the public official suing can prove “actual malice,”  “that is, [it was published] with knowledge that it was false or with reckless disregard of whether it was false or not.” (Note that the test for “actual malice” is about knowledge and recklessness, not ill will or bad intent.)

“Official conduct”

Although Sullivan applied only to “official conduct” by “public officials,” a unanimous Supreme Court almost immediately expanded the protections against libel to cover arguably private conduct. Garrison v. Louisiana, 379 U.S. 64, 77 (1964), held:

[A]ny criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation. … The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official’s fitness for office is relevant.

For the Court, this clearly included such things as “dishonesty, malfeasance, or improper motivation,” even if the accusation was for conduct before a person became a public official or for conduct outside of their official duties.

“Fake news” and “calculated falsehoods”

Whether “fake news” is subject to this special protection depends on what is meant by “fake news.” In Garrison, 379 U.S. at 75, the Court excluded “calculated falsehood[s]” that are “knowingly and deliberately published” from any special protection:

At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool … For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.

Thus, at least one kind of “fake news” — the “deliberate or reckless falsehood,” perhaps even especially when directed to political ends — is subject to the full force of libel laws (but also remember that sometimes “fake news” is actually satire or parody).

Conclusion

New York Times v. Sullivan, and the cases that extend its doctrine to more kinds of public figures and to conduct that is not, strictly speaking, “official,” provides a powerful shield for media faced with a president hostile to journalism.

However, it also makes lawsuits against some kinds of so-called “fake news” more difficult, even if the Court has expressed disapproval of “calculated falsehood” intended to interfere with legitimate democratic governance.

Finally, while the constitutional basis of Sullivan and Garrison make it hard for the executive (president) and legislative (Congress) branches to change them, there remains one mechanism: a change of the makeup of the Supreme Court, which is currently (as of the beginning of 2017) missing one member.