This week’s readings offered further insight into the scope of the First Amendment, detailing how the United States’ commitment to maintaining a free press extends to libel and defamation cases. Grosjean v. American Press Co. (1932) was a Supreme Court case stemming from a gross receipts tax imposed on newspapers that were critical of then-Senator Huey Long of Louisiana. The newspaper publishers argued that the tax was imposed on them by allies of Long, and that mandating the tax was a violation of the First Amendment. Ultimately, the Supreme Court sided with the newspapers, noting that the tax was intended to limit the circulation of the impacted papers.
Another reading from this week, New York Times v. Sullivan (1964) was an important case in the establishment of press protections against accusations of libel. The case surrounded an ad that ran in the Times soliciting donations for Martin Luther King Jr.’s defense against perjury charges, which contained some inaccuracies. The public safety commissioner in the city MLK Jr. was being held felt the ad was directed toward him and his department, despite the ad not mentioning him by name, and he sued the paper for libel. Two lower courts ruled in favor of Sullivan, but the Supreme Court reversed the rulings and sided with the Times. This case is particularly important because it established that “actual malice” must be present in order for a libel charge to be pertinent.
In the instance of the latter Supreme Court case, it’s evident that the First Amendment is and should continue to be a vital shield for press organizations that are charged with disseminating libelous information. Even though the Times published inaccurate information, it was protected under the Supreme Court’s purview of the First Amendment because it did not publish falsehoods with knowledge of their inaccuracy, nor did the paper publish the information with reckless disregard for disseminating the truth. This is a fairly sound judgment of how news organizations should be able to utilize the First Amendment to protect themselves against libel suits, but I think there should be further scrutiny.
In accordance with current libel law, I do not believe news organizations should be protected under the First Amendment from libel or defamation lawsuits if they knowingly spread disinformation or slanderous information. I think press organizations have a duty to report wholly and accurately and should make extraneous efforts to independently verify information prior to publication. It should not be a sound legal argument in all cases to say that a published piece of false information is protected under the First Amendment simply because the news organization did not know it was false.
That being said, it is distressing to see that defamation and libel lawsuits that are brought against news organizations for publishing true but embarrassing information are still common in the United States. In The Weaponized Lawsuit Against the Media, Lili Levi explores how libel lawsuits against press organizations can quickly produce a “chilling effect” that harms the overall spread of information. In discussing how news organizations can work against these kinds of lawsuits, she explores the problem of plaintiffs using third-party litigation funding, ultimately putting forth a “four-pronged approach” to grappling with this ongoing issue.
In the final of the four tenets of her approach, Levi advocates for the existence of a litigation-misuse claim available to press defendants in libel or defamation lawsuits that echoes tort and anti-SLAPP law.
“When plaintiffs claim titanic damages awards in third-party-funded lawsuits to bankrupt the media defendant, even substantively non-frivolous claims become abusive,” Levi writes.
Anti-SLAPP statutes – aimed at curbing the impact of or wholly halting strategic lawsuits against public participation – vary state-by-state but generally do a good job of protecting press defendants who are being sued for publishing various information. Plaintiffs with lots of financial resources who are displeased with a media organization’s coverage of them may file various SLAPP lawsuits in order to drain the organization’s resources or bar them from publishing future stories out of fear of retaliation.
Arizona has a fairly robust set of anti-SLAPP statutes, but this is only a recent development. In May 2022, the state amended its anti-SLAPP laws to pertain to all forms of expression protected under the First Amendment; before, Arizona’s anti-SLAPP law only protected defendants who were sued for exercising their right to petition the government. Overall, anti-SLAPP statutes are necessary in our contemporary age of digital information. Without them, small press organizations devoted to holding bad actors in their communities accountable would face innumerable challenges in the form of various SLAPP lawsuits.
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