For a politician who loathes the mainstream media, DeSantis certainly seems to love its trappings. His panel discussion took place in front of a studio audience on a tight set with an image of a spinning globe in the background, covered with a banner: “TRUTH”. There was general agreement among the panelists — including defamation attorney Libby Locke, former Covington (Ky.) Catholic student Nicholas Sandmann, and Claremont Institute colleague Carson Holloway — that U.S. news media organizations need a more restrictive legal regime.
“If you are knowingly spreading false information and I would even say that these companies are probably the top purveyors of disinformation in our entire society right now,” said DeSantis, a Harvard Law graduate, “there should be an opportunity for people to defend themselves, not through government regulation or restriction, but through be able to seek private law of action.”
Boldface added to highlight the irony of a Republican — whose party has long been committed to limiting the private right of action — glorifying the private right of action, essentially a fancy term for people who are suing for their rights force.
The round table quickly turned into a beatdown of New York Times v. Sullivan, the landmark 1964 Supreme Court decision that required government officials (later expanded to “public figures”) seeking damages for defamation to prove “actual malice”—that an outlet knowingly published a lie or operated with reckless contempt for the truth. Holloway said that in a “functioning democratic culture” the media should provide “truthful and accurate information, not defamatory slander of public figures”.
Locke, whose firm Clare Locke LLP has filed several high-profile defamation lawsuits, including a jury verdict in favor of a University of Virginia dean against Rolling Stone magazine, claimed that at every step of the trial “the thumb is on the scales in favor of the press.” The courts, she complained, have ruled that “limited-purpose public figures” — people who get embroiled in controversy and a “massive segment of the American citizenry,” she said — must comply with the Times v. Sullivan requirements, that is the media has “complete immunity from liability”.
“Full immunity”? That is, except for all the media companies that successfully sued Locke and her company. When asked how her firm could thrive in such an environment, Locke replied via email: “The simple answer is that we have become an expert in this area of law and practice, unlike any other company in the country. “
Amidst the Sullivan bashing, DeSantis tried to differentiate himself from “regular” people: “Me, they come after me and they do a lot of slander,” the governor said. “But I’m fighting back. I have a platform to fight back, so it’s a lot easier for me.”
In doing so, DeSantis endorsed a basic tenet of…the New York Times v. Sullivan leather. The idea that politicians, celebrities and the like have the means to counter negative press is deeply rooted in case law. In the oft-cited 1974 case Gertz to WelchFor example, Judge Lewis F. Powell Jr. wrote: “Public officials and public figures usually have significantly greater access to the channels for effective communication, and thus have a more realistic chance of countering false statements than private individuals normally have. Individuals are therefore more vulnerable to injury.” Private individuals, that is, like Sandmann, who, as a high school student, sued multiple news outlets for his portrayal of a January 2019 encounter with a Native American activist at the Lincoln Memorial. Sandmann reached settlements with The Post, CNN and NBC News, though his lawsuits against several other media outlets, including the New York Times and ABC News, were dismissed last year.
Despite his perhaps accidental support for a principle of New York Times v. Sullivan, DeSantis has been considering legislation to overturn it. As Skyler Swisher of the Orlando Sentinel reported last May, a top DeSantis aide has been working on a bill — not yet introduced — that would:
- Determine that the “failure to validate or confirm the alleged defamatory statement” is evidence of actual malice.
- Set a presumption that “statements from anonymous sources are believed to be false”.
- Limit the group of people who are considered public figures for defamation purposes.
A problem: “Failure to validate or confirm” a defamatory statement is just a fancy way of describing a major mistake. In New York Times v. Sullivan, the Supreme Court protected the media from grand jury awards for mere error when the injured party was a government official, on the rationale that public discourse would suffer if the media feared for their survival every time they published a critical piece. What does this mean? Puff pieces would multiply in a world ruled by DeSantis.
To assume that anonymously attributed material is false would, in effect, require media organizations to affirmatively prove the truth of their reporting in court – a reversal of the current system, which generally requires plaintiffs to prove the falseness of allegedly defamatory statements. The effect would be to suppress investigative reporting on public figures of all ideological hues.
Is DeSantis ready to push for these measures in the Florida legislature? He will say more soon on a “whole variety of different issues,” he promised last week. If passed, the governor’s reform ideas could end up with the Supreme Court, which declined to revisit last year New York Times v. Sullivan.
But who knows – maybe it would entertain one of DeSantis’ piecemeal adaptations, which would pose a far greater threat to the American media than the empty Trump promise.