Jon Stojan
The Growing Threat to Democracy Posed by Irresponsible Journalism, Shielded Behind New York Times Co. v. Sullivan (1964)
Sullivan Sets the Stage
The First Amendment to the United States Constitution guarantees that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Prior to 1964 that guarantee had never shielded the press from being held civilly liable for publishing a defamatory statement. But in 1964, 173 years after the Constitution was written the United States Supreme Court unconstitutionally constitutionalized defamation in the case of New York Times Co. v. Sullivan.
The New York Times had published multiple defamatory claims against the Montgomery Police Department in an advertisement paid for by civil rights activists. Montgomery Police Commissioner L. B. Sullivan sued the newspaper alleging that the libelous publication impugned his character and damaged his reputation as police commissioner. An Alabama jury decided in Sullivan’s favor. The Alabama Supreme Court upheld the verdict.
The case was thereafter appealed by The New York Times to the United States Supreme Court, which not only reversed the lower court ruling, but also added a new rule that fundamentally changed American defamation law and journalism. The Court held that a public official had to prove that the defamatory statement was published “with knowledge that it was false or with reckless disregard of whether it was false or not.” This law is known as the “actual malice” standard. It was later expanded in future cases to include election candidates and public figures.
A number of Supreme Court justices have denounced New York Times Co. v. Sullivan and its progeny. For example, Justice Clarence Thomas has described these cases as “policy-driven decisions masquerading as constitutional law.” Chief Justice John Roberts once wrote that Sullivan “crown[s] the media with virtual absolute immunity for falsely assailing public officials.” A host of other legal scholars and a wide swath of the public have also found New York Times Co. v. Sullivan to be noxious.
Countless plaintiffs have found “actual malice” nearly impossible to prove. Consequently, the five multinational media giants that control the press can defame public figures with impunity. In sum, the mass media oligopoly has a license to publish what President Trump calls fake news about candidates for public office.
The Context
Don Blankenship was a leading United States Senate candidate during the 2018 West Virginia Republican primary election. However, NBCUniversal, Boston Globe Media Partners, Fox News Network, and other media outlets repeatedly defamed Blankenship by falsely reporting that he “went to jail for manslaughter after people died” and was a “convicted felon.” These acts of election sabotage derailed Blankenship’s campaign and caused him irreparable political, professional, and personal reputation injury.
The Attack
Among many similarly recorded, documented, and admitted attacks, Blankenship contends that “Senate Majority Leader Mitch McConnell masterminded a character assassination of Petitioner on the Fox News Channel show The Story with Martha MacCallum. GOP operative Karl Rove vilified Petitioner as a ‘bigot,’ ‘moron,’ and ‘crook’ during the telecast. Furthermore, Blankenship states that “Karl Rove testified under oath that he has no obligation to tell the truth when he appears on Fox News programs.” [Emphasis added.]
A few days after the MacCallum Show, President Donald Trump and Senate Majority Leader Mitch McConnell appealed to Fox News Chairman Rupert Murdoch for help to beat Blankenship. Murdoch, messaged his highest ranking executives that “dumping on [Blankenship] hard might save the day.” During the ensuing 48 hours, Blankenship was falsely maligned as a “felon” and “convicted felon” on several Fox News shows by multiple commentators.
The Case
Blankenship filed a defamation suit against the culprits. But the media defendants, protected by the judiciary’s draconian interpretation of the “actual malice” requirement, prevailed in both the district court and the court of appeals.
Blankenship has appealed to the United States Supreme Court. His petition asserts:
The actual malice standard poses a clear and present danger to our democracy. A representative government cannot be sustained unless the electorate receives accurate information about election candidates and retains confidence in election fairness. New York Times Co. v. Sullivan . . . grant[s] the press a license to publish defamatory falsehoods that misinform voters, manipulate elections, intensify polarization, and incite unrest. Election disinformation undermines our nation’s capacity for genuine self-government.
The petition further avers that the actual malice test violates the constitutional principles of equality and security of rights and denies public figure plaintiffs “equal protection under the laws” as guaranteed by the Fourteenth Amendment.
The petition also affirms that the judiciary routinely fails to preserve the right of defamed public figure plaintiffs to a “trial by jury” by routinely granting summary judgment to the defendant.
The petition is deeply grounded in supportive case law citing 22 cases spanning nearly a century, including a 1928 case holding that “[a]ny printed or written publication falsely imputing to another a crime or moral delinquency is actionable per se without proof of special damages.”
Politico-Media Complex
The term “politico-media complex” refers to the symbiotic and collusive relationship between our nation’s political class and the mass media. Blankenship explained: “My case exemplifies how the politico-media complex controls who will be elected to Congress. I was an outsider election candidate who dared to criticize public policies, raise McConnell’s conflicts of interest with Communist China, and challenge the Republican Party leadership. But our political elites want minions, not independent thinkers. So, Trump and McConnell abused the power of their respective offices and pressured Murdoch for help to destroy my campaign. Fox News obliged them by smearing me as a “convicted felon” who could not win the general election. This is what Senator Nancy Pelosi has described as a ‘wrap-up smear.’” Blankenship concluded: “When our collective ability to distinguish truth from falsehood is compromised, democracy is defeated.”
It’s Happened Before
As the late United States Circuit Judge Laurence Silberman wrote: “It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of the news.…reminiscent of the alliance between the Politburo of the Communist Party and Pravda in the former Soviet Union.”
Digging Deeper
New York Times Co. v. Sullivan empowers the politico-media complex to employ weaponized defamation to marginalize and stifle the speech of non-establishment election candidates who criticize the government. Blankenship described the “actual malice” regime as a “modern day seditious libel act.” Blankenship warned: “If New York Times Co. v. Sullivan is not overturned, then it will soon be game over for democracy in this country.”
Conclusion
In his petition to the Supreme Court, Blankenship shares his firm conviction that “[o]verruling Sullivan will spark a resurgence of fact-based journalism. Best practices for accuracy and truthful reporting will be incentivized. Reliable information will be exchanged in the public square. Facts will become distinguishable from fiction. Voters will be meaningfully informed. The broken trust in elections will be rebuilt. A sense of solidarity will be reawakened. Public discourse will be reconsecrated to the full achievement of democracy.”
The “post-truth” era must end. It is never too late to do the right thing.