Dominion v. Fox News evidences 'actual malice,' also shows how standard has fueled misinformation

(UPDATE, April 18, at 5:17 p.m.: NBC News reported a half hour ago that Dominion and Fox News reached a $787.5m settlement.)

CBS Sunday Morning did a nice piece this week on Dominion v. Fox News and the long heralded, but ever more evidently problematic, "actual malice" standard.

The piece explains the N.Y. Times v. Sullivan (U.S. 1964) "actual malice" standard in public-figure-plaintiff defamation cases such as Dominion, and how the standard is exceptionally provable upon the extraordinary evidence Dominion uncovered about Fox personalities' duplicity in knowingly professing misinformation.

Many a media pundit has made the observation on the seeming provability of actual malice in the case. CBS's voice for the point is that of Lee Levine, a highly regarded, now retired attorney who represented mass media companies in famous cases before the federal courts. In the Sunday segment, Levine says something along the lines of rarely if ever having seen an actual malice case he could believe in before now.

With Stephen Wermiel, Levine wrote a book, Progeny, about the "fight to preserve the legacy of ... Sullivan."  It's a good book on its merits. At the same time, its rhetoric and thesis well serve to bolster the social and economic power of the mass media business establishment.

As on CBS, Levine and lawyers like him often are held up as standard bearers for the First Amendment. But the corporations they represent are hardly freedom fighters in the romantic tradition of the lone pamphleteer.

I've long opposed Sullivan as a matter of constitutional fidelity or First Amendment imperative. It takes ill account of competing values, such as the right of personal reputation that has caused other western-democratic jurisdictions, such as Canada and Europe, to reject the standard as too stringent. As internet democratization has made it easier for ordinary people to be devastated by reputational harm, Sullivan has become ever more indefensible.

Dominion ought not be regarded as the rare exception that proves the rule. The plaintiff-company is able to make its case only because, to date, it has been sufficiently determined and well resourced to get over the many hurdles, such as anti-SLAPP statutes, that usually shield mass media from accountability. Most defamation plaintiffs, if they sue at all, see their cases dismissed without the benefit of discovery.

Dominion ought instead be taken as evidence in the mounting case that Sullivan has been a powerful cause of our misinformation crisis.

Media want anti-SLAPP security while ignoring real harm, and nobody wants to talk about tort dysfunction

Christian Dorn from Pixabay

On April 7, one of my favorite podcasts, WNYC's On The Media (OTM), ran a story, not its first, on anti-SLAPP laws: statutes in the states (not yet federal) designed to combat "strategic lawsuits against public participation."

I've written about anti-SLAPP many times.  I'm not a fan of the statutes.  The OTM piece is good and important, but it tells only one side of the anti-SLAPP story.  That's a common, and forgivable, shortcoming in mass media coverage of itself.

Why I Care, and You Should Too

I've been a media advocate since I was hooked by my first high school journalism class in the 1980s (hat tip at Mrs. McConnell).  I've been a media defense lawyer and a defamation plaintiff, besides a classroom teacher of media law and the First Amendment.  My hang-up is justice, or the remediation of injustice (yes, I'm a J), and there's plenty of both in the way our news media work in the shadow cast by the shield of the First Amendment.  Advocating for the devil in my classroom, I was a critic of the Sullivan/Gertz actual malice standard decades before it became fashionable, or even socially acceptable in academic circles, to question the supposed sine qua non of free speech.

So when the media defense bar teamed up with state legislators to start piling on anti-SLAPP statutes as another death-blow weapon in the scorched-earth media defense arsenal in the late 1990s, I was skeptical from the get-go.  Upon the siren song of free speech absolutism, now decades on, Americans have fallen into the lazy habit of denying access to our courts to would-be plaintiffs who are genuinely victimized.  As a scholarly observer of tort law, I can tell you, bad things happen when people are systematically disenfranchised from justice.  What's worse, as empirical research has consistently told us for decades, and I confirm from my own experience, the ordinary defamation plaintiff is not the money-grubbing opportunist that tort reformers (or distorters) wish us to imagine; rather, what a defamation plaintiff usually wants, first and foremost, is the truth.  News media defendants might remember the truth from journalism school.

How did we get to a point that when a plaintiff and defendant want the same thing, it's still a zero-sum game?  If with the best of intentions, the U.S. Supreme Court in the civil rights era so distorted the state landscape of defamation law that media defendants lost all interest in compromise, even if the simple compromise is to correct the record and speak the truth.  Sullivan biographer Anthony Lewis recognized this problem in the penultimate chapter of his otherwise-paean to the case in 1992.  And this is why the 1993 Uniform Correction or Clarification of Defamation Act proved a profound failure.  The uniform law proposed using a First Amendment-compliant carrot rather than a constitutionally prohibited stick to coax media defendants to hear complainants out before facing off in court.  But, media defendants implicitly pleaded in response, why should we listen when we always win?

Anti-SLAPP laws are perfect for the thing they're perfect for: To shut down an obvious attempt to abuse the legal process with a sham claim when the plaintiff's true motivation is to harass or silence a defendant engaged in constitutionally protected speech or petitioning, especially when it's whistle-blowing.  "I know it when I see it" is why a South African judge recently allowed anti-SLAPP as an "abuse of process" defense even in the absence of a statute, shutting down a mining company's implausible suit against environmentalists.  Meanwhile, the American anti-SLAPP statute, the darling offspring of mass media corporate conglomerates and financially beholden legislators, tears through court dockets with no regard for the balance of power between the parties.

As a result, sometimes, like the infinite monkey who stumbles onto Hamlet, anti-SLAPP works.  Other times, David is summarily shut out of court at the behest of Goliath.  The dirty secret of the media defense bar is that it's pulling for the latter scenario more often than the former, because Davids pose a much greater threat to the corporate bottom line than the occasional, over-hyped monkey.

Squirrel!  SLAPPs Aren't the Problem

SLAPP suits only work because of a bigger dysfunction in tort law:  Transaction costs are way too high.  Lawyers and litigation cost too much.  (Law school costs too much, but that's another rabbit hole.)  Our civil dispute resolution system, in contrast with those of other countries, so prizes precision as to draw out civil proceedings to absurd expectations of time, energy, heartache, and money.  Too often, at the end of a litigation, both exhausted parties are net losers, and only the lawyers, on both sides, come out ahead.  The tort system is supposed to engender social norms and deter anti-social conduct through its compensation awards, not its overhead costs.  We've so contorted torts, especially when accounting for suits that are never brought, that the norm-setting and deterrent effects of transaction costs dwarf the impact of outcomes.

Anti-SLAPP tries to solve the problem of runaway transaction costs by summarily dismissing claims on the merits when a plaintiff cannot prove the case at the time of filing, usually without the benefit of discovery.  The game is rigged, because the evidence the plaintiff needs is in the possession of the defense.  So plaintiff's unlikely path to proof, already mined with common law and constitutional obstacles to press the scale down on the defense side, is well obliterated by anti-SLAPP. We could use this "solution" of summary dismissal across the board to cut back on tort litigation.  But people wouldn't stand for it in conventional personal injury, because then we'd be overrun with uncompensated and visibly afflicted plaintiffs, and the injustice would be undeniable.

If we dared have the creativity to experiment with more effective dispute resolution mechanisms as alternatives to tort litigation, we might best start with defamation cases, in which we know what plaintiffs want, and it's not money.  Yet here we are, hamstrung by the Supreme Court, disenfranchised by defense lobbyists, and forced to swallow the dangerous myth that we can have free speech only if we stand aside and let mass media deliver misinformation with impunity.

The Case of the Charity Exposé
and the Lamentations of the Media Defense Bar

In the April segment, OTM host and media veteran Bob Garfield interviewed Victoria Baranetsky, general counsel for the 501(c)(3) nonprofit Center for Investigative Reporting (CIR), about a lawsuit by also-501(c)(3) nonprofit Planet Aid against CIR.  The lawsuit arose from a 2016 series on the CIR Reveal platform, in which CIR alleged abuse of charitable status by the organization through, inter alia, improper diversion of donor funds.  A California federal judge dismissed the 2018 complaint in March 2021, and Planet Aid, which is appealing, and CIR have very different takes on what that dismissal meant.  Planet Aid emphasizes "46 statements" in the reporting that the court found false, notwithstanding anti-SLAPP dismissal, while CIR emphasizes "several million dollars" of legal costs, "vastly exceed[ing] ... insurance coverage" and impossible to pay without pro bono aid.

CIR is not an outfit that publishes without doing its homework.  So without opining on the merits of the lawsuit, I admit, my gut allegiance in the case tends to CIR.  And I think it's OK that OTM interviewed only Baranetsky.  "Balance" as a journalistic value too often feeds the "talking heads" phenomenon we know from the disintegration of television broadcast journalism.  OTM's report was about the toll of litigation on journalism, not the merits of the CIR stories.  Looking, then, at the OTM story, I find that a side was missing, but it wasn't Planet Aid's.  Missing is reasoned resistance to the anti-SLAPP craze.  Here, then, are my reflections on five media lamentations in the OTM story about anti-SLAPP.

Lamentation Over Forum Shopping

(1) Baranetsky lamented that Planet Aid was permitted to sue in Maryland, where the law was advantageous to a plaintiff, and CIR was forced to incur major costs to move the case to California, where anti-SLAPP law is more protective.  Federal anti-SLAPP would fix this problem.

Forum shopping is a problem, but not specially a media defense problem.  Barring defamation victims from redress equally across the states isn't better than barring them one state at a time; i.e., 50 wrongs don't make a right.  Rather, everything that's wrong with anti-SLAPP would be multiplied by a federal statute.  Plaintiff's choice of forum does aggravate costs, and that allows forum shopping to be used improperly as a SLAPP tool.  The answer is to change how we manage forum selection in federal civil procedure to stop the externalization of costs to defendants and to compel professionalism in the plaintiffs' bar—not to put a thumb on the scale of merits in lawsuits, even SLAPPs.

Moreover, in overriding state court discretion to hear defamation actions on the merits, a federal anti-SLAPP statute would double down on the entrenched Sullivan/Gertz paralysis of the tort system that's precluding the development of innovative alternatives.  Our problem in defamation law is not lack of uniformity in the states, but precisely the opposite, lack of diversity that would generate new approaches.

Lamentation Over the Burdens of Discovery

(2) Baranetsky lamented that California federal courts have allowed limited discovery before dismissing cases under California anti-SLAPP law, thereby upping the costs of money and time for media defendants and mitigating the efficacy of anti-SLAPP. 

Notwithstanding the present debate in the Courts of Appeal over whether state anti-SLAPP laws can displace federal court process, anti-SLAPP puts defamation plaintiffs in a no-win scenario, especially when the plaintiff is a public figure.  Under Sullivan/Gertz, a public-figure plaintiff can prevail only by proving subjective knowledge or intent on the part of the defendant to publish falsity.  Subjective culpability lies only in the mind of the defendant.  Without precogs, we prove subjective culpability with circumstantial evidence.  When the defendant is a mass media organization, that evidence is in the possession of the defendant.  Even in a negligence case with a private-figure plaintiff, it is impossible to probe the culpability of the defendant when the plaintiff has no knowledge of the defendant's internal process, even the identity of a staff editorial writer, for example.

Yet along comes anti-SLAPP to demand (in the usual formulation) that a plaintiff prove likelihood of success on the merits with evidence that the plaintiff could not possibly possess.  Win-win for the media defense, lose-lose for access to justice.  Baranetsky bemoaned the costs, tangible and intangible, of discovery, especially on a nonprofit media outlet.  With that complaint, I am sympathetic.  Again, though, the answer is to change the process to control transaction costs.  The long reach of American discovery is globally infamous and socially problematic in ways well beyond the woes of media defendants.

Baranetsky raised the further point that the permitted discovery was one-sided, so CIR was not able to use discovery to bolster what might be a winning affirmative defense, such as truth.  I take this point, too.  I have some concern about the potential for a media organization—imagine not CIR, but a more partisan and unscrupulous outfit—to misuse discovery to further ill intentions.  But courts can and should control the scope of discovery with appropriate protective orders.   

Lamentation Over Interment by Paper

(3) Baranetsky lamented that the Planet Aid "complaint was about 66 pages, almost 70 pages long.... [B]ecause our reporters did such extensive reporting, published on the radio, published online, there were a lot of remarks to pull in from a really substantive investigation. The complaint here was padded with all of those bells and whistles."  That again upped media defense costs and slowed down the anti-SLAPP process.  

I don't doubt that the complaint was longer than it needed to be.  Plaintiffs anticipating high-profile litigation—by the way, including agenda-seeking litigators from both left and right, as well as state attorneys general—routinely plead "to the media" and to "the court of public opinion," rather than to the court of law.  Excessive pleading runs up defense costs, as well as court time, which is not fair to litigants or taxpayers.  Again, the answer lies in bar and bench control of process and professionalism, not in summary dismissal on the merits.

More importantly, to some extent, a defamation plaintiff's claim in a case over a series of reports must be lengthy, for a very reason Baranetsky said, and not because the plaintiff wants it that way.  It's not "padding," "bells," or "whistles."  Defamation plaintiffs are compelled by rules of pleading to commit a perverse self-injury by republishing the defamation of which they complain.  Thereafter, mass media entities are permitted to restate the defamation as a fair report of a public record, almost with impunity.  As a result, often, the defamation is amplified, and the plaintiff's suffering is vastly compounded.  Even if the plaintiff wins the case, compensation for this added injury is disallowed, and no media entity can ever be compelled to correct or update the record by reporting that the plaintiff later prevailed upon proof of falsity.

In my own plaintiff's case, precisely this happened.  Among countless national outlets, The New York Times reported the defamatory allegations I republished in the complaint, but never covered the case again, despite my entreaties to the reporter and ombudsperson.  To this day, I overhear innuendo based on the Times story with no reference to my later exoneration, which was reported in only one excellent-but-niche publication.  In my experience with would-be defamation plaintiffs, I have seen that this risk alone prevents a victim from seeking redress as often as not.  Once again, we could answer this problem by reforming pleading in defamation, rethinking what "fair report" means in the digital age, and experimenting with dispute resolution, if only Sullivan/Gertz left the defense bar with the slightest incentive to participate.

Lamentation Over Litigiousness

(4) In his introduction to the case, Garfield said, "Without offering evidence to rebut the allegations, the charity promptly sued the news organization for libel."

OTM itself walked back this characterization of Planet Aid's lawsuit as a blindside attack.  An OTM editor's note to the story posted online added that, according to a PR firm representing Planet Aid, the organization "reached out to [CIR] prior to filing its lawsuit asking for a retraction and correction."

I don't know whether Planet Aid's version is right, or OTM's, or maybe the demand letter got lost in the mail.  As I've indicated, I'm not rushing to sign up Planet Aid as my poster child for the Anti-SLAPP Resistance.  But OTM's post hoc characterization of events is, to my experience, typical of media-defense-bar spin.  In reality, rare in the extreme is the case that there is not at least a demand letter and response.

In my own plaintiff's case, I filed suit as late as possible, on the eve of the expiration of the statute of limitations.  I sought to diffuse the disagreement through every possible avenue, both vis-à-vis my defendants and through negotiation with a third party.  Yet when my case turned up years later in a book by an academic colleague, Amy Gajda, she used my case to support the book's thesis that alternative dispute resolution mechanisms on university campuses would help to avert lawsuits by litigious academic plaintiffs like me.  I don't dispute (or support) that thesis in the abstract, but my case did not support it.  Gajda suggested that I rushed to sue, without probing alternatives, which was utterly false.  In fact, it was the refusal of my potential defendants to come to the table—the very problem of Sullivan/Gertz inhibition of dispute resolution—that forced me into a lawsuit as an undesired last resort.

Gajda, by the way, is herself an award-winning journalist and scholar of media law.  Yet she readily contorted the procedural facts of my case to fit her expectations without ever asking me what happened.  We know each other, and I'm not hard to find.  If a top-flight journalist can be so sloppy with the facts in a case about a professional colleague, and I have to lump it, what chance does a lay soul in private life have to correct the record on something that really matters, as against a professional media outlet with a partisan agenda and lawyers on retainer?

How simple it is to make assumptions and feed the tort reformer's myth that greedy plaintiffs eagerly sue at the drop of a hat.  Yet no one properly counseled by an experienced attorney chooses a lawsuit as a first course of redress.  To the contrary, defamation victims, especially in matters as difficult to win as media torts, typically cannot find an attorney willing to take the case at the opportunity cost of sure-thing personal-injury money, and certainly not on contingency.  Plaintiffs wind up not suing for that or many other reasons unrelated to their real losses.  Other reasons include the risk, under anti-SLAPP fee-shifting, of having to pay attorneys' fees to a corporate media defendant's high-priced lawyers—not because the plaintiff wasn't defamed, but because the plaintiff could not meet the enhanced burdens to overcome a First Amendment defense.  Other reasons also include the stigma associated with being a plaintiff in America, a stigma perpetrated by corporate advocates of tort reform and conveniently perpetuated by would-rather-not-be defendants in the media business.

Lamentation Over the Price of Free Speech

(5) Baranetsky opined, "We have to be wary of defamation law being used by public figures and politicians and wielded in ways that can be used retributively. At the same time, make sure that lies aren't being spread.  The hope is that anti-SLAPP laws are really, they're the precise scalpel that's supposed to sharply and acutely figure out which falls on which side of the line."

That's a profound misapprehension of anti-SLAPP laws.  There is nothing about anti-SLAPP that is precise or acute.  Very much to the contrary, anti-SLAPP is designed to be a blunt instrument that stomps out litigation before it can get started, looking scarcely at the quantum of evidence on the merits and rounding down in favor of the defense.  Anti-SLAPP operates upon the very theory of Sullivan/Gertz, which is that the price of free speech is the prophylactic annulment of meritorious claims and the tolerance of misinformation.  The theory of anti-SLAPP is that we don't want to know the truth, and would rather abide falsity, when the cost of disentangling truth and falsity is inconveniently excessive.

Baranetsky's take on anti-SLAPP is ironic in the extreme.  The Sullivan/Gertz constitutionalization of state tort law is based on the age-old argumentative hypothesis of moral philosophy that "the truth will out" in the marketplace of ideas, so the courts ought not intervene to abate falsity.  That proposition has been vigorously refuted by scholars as demonstrably erroneous.  And CIR's very motto, splashed on a home page banner, is: "The truth will not reveal itself."

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I've identified areas of tort law that need reform—abuse of forum selection, excessively broad discovery, permissiveness of fact pleading—and areas of defamation law in particular that need reform, procedural and substantive—pleading requirements, fair report protection, culpability and proof standards, plaintiff access to representation, and availability of alternative dispute resolution—but are paralyzed by federal capture of common law and media defense intransigence.

Let me not understate my appreciation for OTM, WNYC, CIR, and all kinds of nonprofit journalistic enterprises.  I am grateful that CIR did the reporting that it did on Planet Aid, and for the reporting that OTM does all the time on threats to public interest journalism.  I am fearful of a world in which that reporting does not happen.  

Nevertheless, I object to a legal standard that presumes news media have the corner market on truth.  If our system of civil dispute resolution is broken, and I think it is, then we need to fix it.  Anti-SLAPP is at best a patch to paper over unsightly symptoms of our dysfunction, and, too often, it does so at the expense of genuine victims.  Our willingness to ignore injury says more about the sorry state of our democratic character than does our blind fealty to an unbridled press.

At the annual meeting earlier this year of the Communications Law Forum of the American Bar Association, a famously media defense-identifying conference, I heard whispered for the first time some cautious and reluctant concern that media defendants holding all the cards in tort litigation might—wait, is this a secure channel?—might not necessarily be the best strategy to ensure the freedom of speech and to protect the flow of truthful information in America, especially in the digital age.

Now where have I heard that before?

'Seminal' South African defamation case instructs on limited remedial reach of American speech torts

A politician prevailed in defamation against a critic who accused him of nepotism in a South African Supreme Court of Appeal case that a media law expert called "seminal."

Julius Malema in 2011, then a member of the ANC Youth League

Photo by Gary van der Merwe CC BY-SA 3.0

Economic Freedom Fighters, a self-described "radical and militant economic emancipation movement" (EFF, definitely not to be confused with the Electronic Frontier Foundation), criticized former South African Finance Minister Trevor Manuel of "patently nepotistic and corrupt process" in recommending to public appointment "a dodgy character called Edward Kieswetter, who is not only a relative of Trevor Manuel, but a close business associate and companion."  EFF published its statement on Twitter to 750,000 followers, and EFF leader Julius Malema retweeted the statement to his 2 million followers.

The Gauteng high court ruled the statement defamatory, and the Supreme Court of Appeal (SCA) affirmed in December 2020, though remanded for reconsideration of the award, 500,000 rand, about US$33,000, because of procedural error.

South African lawyer and scholar Dario Milo, also an English solicitor and expert with the Columbia University Global Freedom of Expression project, described the case as the most seminal in South African defamation law in two decades, writing about the case for his blog, Musings on the Media, the Daily Maverick, and The International Forum for Responsible Media (INFORRM) blog.  Important, Milo wrote, was that the court allowed recovery for a genuinely aggrieved plaintiff, even if a public figure, upon a dearth of evidence to support the defendant's defamatory allegation.

Trevor Manuel, when Finance Minister in 2008

Photo by Valter Campanato/ABr CC BY 3.0 BR

According to Milo, the law should not protect the likes of former South African President Jacob Zuma, who weaponized defamation in 15 suits against news media and political commentators, nor of Johnny Depp, whose suit against his ex-wife was recently bounced by English courts.  (Depp's suit resulted in an awkward factual determination that he had beat up his wife, a legal result Milo characterized as an "own goal."  I like that.)  But the genuinely aggrieved, public officials and figures such as Manuel included, deserve their day in court, he maintained.  And the SCA ruling ensures that "dignity" will not be sacrificed even on the altar of political speech.

From an American perspective, the case offers some thought-provoking points of divergence from First Amendment doctrine.  The South African common law of defamation, rooted in English common law, is not so different from the American.  But the American speech-protective doctrine of New York Times v. Sullivan (U.S. 1964), justly born of the civil rights era, but, I assert, run amuck since, marked an enduring point of divergence between America and the world.

An important if nuanced divergence arises in the problem of EFF's culpability.  As to the underlying truth of the alleged defamation, EFF was sunk; the defense could not refute Manuel's denial that he is "related" to Kieswetter.  Looking, then, to culpability, the South African court found EFF in utter dereliction of duty.  It had no facts to support the allegation of nepotism and made no effort to ascertain any.

In the United States, the Sullivan rule of "actual malice" would require a plaintiff to prove that the defendant published falsity knowingly or in reckless disregard of the truth.  At first blush, that approach might seem compatible with the South African ruling.  But in practice, instructed by a Supreme Court that places a heavy thumb on the scale to favor a defendant's political speech, the rule de facto for American journalists has been that ignorance is bliss.  However much journalism ethics might counsel a duty of investigation, courts have been unwilling to find actual malice without smoking-gun evidence that the defendant had contrary facts within reach and deliberately ignored them.

In recent years, there has been a modest uptick in litigation over alleged actual malice, and I suspect, indeed hope, that that might be a function of a correction.  Recognizing the folly of a de facto bar on defamation suits by persons in politics has undesirable collateral effects, inter alia, deterring political involvement and feeding divisive discourse.  I wonder that American judges, consciously or not, might be increasingly inclined to treat the actual malice standard more as the "recklessness" rule it purports to be.

2019 EFF campaign poster

Photo by DI Scott CC BY-SA 4.0

Another curious takeaway from the South African case is the remedy.  Though the SCA muddied the outcome with its remand on procedural grounds, the court had no substantive objection to high court orders that would raise First Amendment issues.  For in addition to the R500,000 monetary award, the high court ordered that EFF take down its statement and not repeat it subsequently, and that EFF apologize to Manuel.

American thinking about defamation has limited remedies to the reputational-loss proxy of pecuniary award.  First, to "interdict" subsequent speech, to use the South African legal term, goes too far in U.S. remedies, violating the rule against prior restraint—probably.*  There has been some case law lately suggesting that that rule might yield in exceptional circumstances, such as when a destitute or determined defendant cannot pay recompense but has the will and means, especially through readily accessible electronic media, to persist in the defamation.

(*Or probably not. I am kindly reminded that injunction is available now as a defamation remedy in two-thirds of U.S. states.  Professor Eugene Volokh's 2019 publication presently is the truly seminal work in the area; read more, especially the thorough appendices.  Injunctions are variable in kind, for example, preliminary versus post-trial, and the circumstances play into the constitutional analysis.  Regardless, a confluence of legal trends and a changing world seems likely to result in constitutional approval of the injunction remedy in appropriate circumstances. —CORRECTION added Jan. 13.)

Second, a compulsion of apology would unnecessarily abrogate a defendant's right not to speak.  And how genuine an apology might one expect, anyway?  Yet Milo ranked it as important that apology is on the table in South Africa.  For as he observed, a public apology, even if empty of sentiment, is often the symbolic gesture that a defamation plaintiff truly desires, even to the exclusion of financial compensation.

This empirical observation, well established in American legal culture, too, highlights a limitation of the First Amendment system.  Even friend-of-N.Y. Times v. Sullivan Anthony Lewis, in his seminal case biography, recognized criticism of the doctrine in that the Court's rigid constitutionalization of state defamation law foreclosed state experimentation with remedies that might prove more socially desirable and judicially efficient.

I'm not ready to abandon the First Amendment.  But we should accept the invitation of comparative law to be critical of American norms and willing to talk about change.  EFF awaits our RSVP.

The case is Economic Freedom Fighters v. Manuel (711/2019) [2020] ZASCA 172 (17 December 2020) (SAFLII).

Court greats both cautioned us on NYT v. Sullivan

I'm indebted to Trump Litigation Seminar student Kevin Burchill, who timely unearthed this interview with the late Justices Ruth Bader Ginsburg and Antonin Scalia by journalist and journalism professor Marvin Kalb.  From the cue linked below (at 21:42, for six or so minutes), they discuss New York Times v. Sullivan (U.S. 1964).

 

Nonetheless a First Amendment advocate, I have long shared Justice Scalia's unpopular position that Sullivan was incorrectly decided.  I don't contend that the newspaper should have lost.  In the civil rights context in which the case arose, Sullivan played a critical role in relieving segregationists of state tort law as a weapon.  However, there were many paths to that outcome that did not require the wholesale federalization and constitutionalization of state defamation torts.

The consequences, as suggested even by chapter 19 ("Back to the Drawing Board?") of Anthony Lewis's classic 1991 panegyric and case biography, Make No Law, have been disastrous, because Sullivan undermined the laboratory of common law experimentation in the states.  Today, for example, the "public interest" approach to public-figure defamation in the UK Defamation Act shows great promise as a model to balance the rights of reputation and free speech.  And other countries, such as Australia, seem to be getting along well with much more limited Sullivan-like protection for free speech on public affairs, without the big sky of democracy collapsing across the outback.  Yet we in the United States remain tethered to a near-immunity doctrine born of a bygone era.

RBG (Kalb Report)

In this interview with Kalb, Justices Ginsburg and Scalia characteristically state their opposing positions on the correctness of Sullivan, for and against, respectively.  What I find compelling, though, is that Justice Ginsburg acknowledged Sullivan's unintended problematic consequences.  Sullivan was a product of civil rights exigency, she reiterated.  But, she recognized, its doctrine was tailor-made for a press on the same page of mighty ideals in the mission and ethics of journalism.

What if, say, new technology caused mass media entry barriers to fall?  And then we had a proliferation of partisan pundits, or even disinformation, pouring through our information flows?  If Sullivan were then not up to the job, we might find our hands tied by unyielding constitutional cable.  We might flail, helpless, in trying to restore integrity to the democratic space.

Perish the thought.

Anti-SLAPP slaps justice, but Richard Simmons survives dismissal in privacy suit over tracking device

Sensational Simmons in 2011
(Angela George CC BY-SA 3.0)

Updated Oct. 17, 2023, to correct broken links.

In telephone consultation with an attorney-colleague just the other day, I had occasion to climb onto my soapbox and preach my anti-anti-SLAPP gospel.  I'm not sure when he hung up, but I kept preaching, because it's about the message, not the audience.

Then Richard Simmons popped up in my newsfeed.  More on that in a minute.

'Anti-SLAPP'

Anti-SLAPP is a mostly statutory court procedure meant to diffuse "strategic lawsuits against public participation," that is, essentially, to dispose quickly of lawsuits that are meant principally to harass a defendant who is participating in public life in a way protected by the First Amendment, namely, speaking or petitioning.

The prototype case is a land developer who sues environmental protestors for a tort such as interference with contract.  An anti-SLAPP statute allows the protestor-defendant to obtain a quick dismissal, because the plaintiff knows the protestor is not a business competitor, and the plaintiff's true aim is harassment via tort litigation.  Anti-SLAPP may be useful if, say, and I'm just spitballing here, you're a sexual assault complainant suing a politician with a habit of counterclaiming for defamation.  But the far more common use of anti-SLAPP motions is when a mass-media defendant is sued for, well, anything.

The communications bar loves anti-SLAPP.  And what's not to love?  What anti-SLAPP statutes demand varies widely across the states.  A defendant's anti-SLAPP motion might require only that the plaintiff re-submit the complaint under oath, or more aggressive statutes demand that the court hold a prompt hearing and dismiss the complaint if the plaintiff cannot show probability of success on the merits, a stringent pretrial standard reserved usually for preliminary injunctions.  Whatever the statute requires, the universal takeaway is that the blocking motion is good for the defense, providing another way to slow down litigation and require more money, time, and exertion by the plaintiff—who, let's not forget, usually is a victim of injury, even if the injury has not yet been adjudicated to be the fault of the defendant.

My problems with anti-SLAPP are legion, not the least of which is that the communications defense bar hardly needs a new defense at its disposal.  We already have the most overprotective-of-free-speech tort system in the world.   Without diving deep today, it will suffice to say that my opposition to anti-SLAPP fits neatly into my broader position that the famous civil rights-era innovation in First Amendment law embodied in New York Times v. Sullivan (U.S. 1964) should rather be described as an infamous and pivotal turn down a wrong and dangerous road, which is why courts around the world have widely rejected the case's central holding.  My position makes me about the most despised person at any communications defense bar conference, so I mostly skip the social events, after I've redeemed my free drink tickets.

Along Came Richard Simmons

When I talk about the abusive deployment of anti-SLAPP, I'm usually talking about the plaintiff's inability to prove Sullivan "actual malice," which, as a subjective standard, requires evidence of the defendant's state of mind.  In an especially wicked cruelty, a typical anti-SLAPP motion requires the plaintiff to show likelihood of success in proving defendant's actual-malicious state of mind before the plaintiff is allowed to use litigation discovery to collect evidence—all of which remains in the defendant's possession.

Bastion of the First Amendment
(2015 image by Mike Mozart CC BY 2.0)

So the rules of the game in First Amendment defamation are first rigged against the plaintiff, and then, when the plaintiff dares to complain anyway, we punish the audacity.  Rubbing salt into the wound, anti-SLAPP laws may also then require the plaintiff to pay the corporate media defendant's legal fees, a bankrupting prospect for the everyday-Joe plaintiff who might have been victimized by the careless reporting of a profits-churning transnational news company.

What I don't usually talk about is the kind of thing that apparently happened lately to Richard Simmons.  The once-and-future fitness guru—don't miss Dan Taberski's podcast Missing Richard Simmons (e1), which, however "morally suspect," might be my favorite podcast ever—alleged in a California invasion-of-privacy lawsuit that celebrity gossip rag In Touch Weekly hired someone to put a tracking device on Simmons's car.  As media, do, and maybe now you to start to see the problem, In Touch Weekly asked for dismissal under California's powerful anti-SLAPP statute, putting to the test Simmons's audacious challenge to the shining gold standard of American journalism.

Fortunately in this case, a trial judge, and this week a California court of appeal, held that news-gathering through trespass, or intrusion, is not what anti-SLAPP is made to protect.  Correspondingly, there is no First Amendment defense to the tort of invasion of privacy by intrusion.  So Simmons's case may resist anti-SLAPP dismissal.

Also fortunately, Richard Simmons has the financial resources and determination to fight a strong invasion-of-privacy case all the way through an appeal before even beginning pretrial discovery.  This isn't his first rodeo.  Richard Simmons is a survivor.

Someone needs to give Richard Simmons a law degree, and one day I won't feel so alone at the comm bar cocktail party.

The case is Simmons v. Bauer Media Group USA, LLC, No. B296220 (Cal. Ct. App. 2d App. Dist. 4 Div. May 21, 2020).  Parent-company Bauer Media Group, by the way, owned the gossip magazines that lost to Rebel Wilson in her landmark Australian defamation case.

Now move those buns.

Let's 'open up our libel laws': I'm with Thomas

There's been a blustering rash of hand-wringing in journalism and First Amendment circles over the recent concurrence to cert. denial by Justice Thomas in McKee v. Bill Cosby (SCOTUSblog).  The case would have asked when a victim of sexual assault becomes a limited-purpose public figure after publicizing her allegation.  Based on First Amendment doctrine dating to the 1960s, famously including New York Times Co. v. Sullivan (U.S. 1964) (Oyez), a limited-purpose public figure must prove actual malice to prevail in a defamation claim.  That's very hard to do.  The First Circuit affirmed dismissal in favor of Cosby. 

"Actual malice"—ill named, as it does not have to do with anger or ill will, which is "common law malice"—is akin to the recklessness standard of tort law.  In a defamation context, "actual malice" is said to mean "knowledge of falsity or reckless disregard as to truth or falsity."  Supreme Court precedents late in the civil rights era amped up "reckless disregard" so much that for many years, actual malice seemed to be a nearly "fatal in fact" test.

Based only on casual observation, I posit that actual malice's rigor has been weakening in recent years.  Courts have begun to recognize the need to fine tune the balance between reputational and speech rights.  Meanwhile, "actual malice" has had a rough go in the world, even among our fellow human rights-loving western democracies.  Actual malice has been largely rejected as a functional standard for its insufficient protection of reputation as a human right countervailing the freedom of expression.  (My colleague Prof. Kyu Ho Youm paints a different picture.  I deeply admire Prof. Youm, a dear friend, and his work, which I have assigned students to read.  But I sharply disagree with his conclusion on this point.)

In his concurring opinion in McKee, Thomas challenged the constitutional imperative of the actual malice standard, which is so much higher than negligence and strict liability.  His argument was not so narrow, however.  Broadly, he proposed that the Court reconsider the fundamental premise that the the federal Constitution, through the First Amendment, should reshape state tort law, as the Court held it did in the civil rights-era cases.  Thomas is a champion of textualism and originalism, and it must be admitted that the Court's First Amendment doctrine from the latter-20th century is on thin ice in those schools of constitutional interpretation.

This blog, any blog, is far from an adequate venue to tackle this question.  I just want to do my part to raise consciousness of Thomas's proposition, and to dare to say, I agree.  For many years now, I have harbored a deep suspicion of Sullivan and progeny.  In my academic circles, especially in the free speech and civil liberties crowd, I have felt something like a church deacon harboring a dark secret.  No longer; I confess:

Actual malice swung the pendulum way too far in favor of defendants.  I get why, and I appreciate the good intentions.  Sullivan arose against the tragic reality of the Jim Crow South and the potential national crisis precipitated by desegregation.  But even Anthony Lewis, in his definitive book on Sullivan, Make No Law, recognized that the Court's federalization and constitutionalization of state defamation law had the ill effect of freezing the process of common law evolution.  As a result, we have been deprived of the opportunity to experiment with fair and equitable policy alternatives, such as media corrections as a remedy.

I'm not arguing to "open up our libel laws," quite as President Trump proposed.  But I'm with Justice Thomas.  Sullivan is not holy writ.

Neil Gorsuch, Benedict Arnold, and the Star Chamber: A media law note

Looking over Judge Gorsuch’s opinions, I was reminded of his role in a media law case of recent note.  Judge Gorsuch in 2011 wrote the Tenth Circuit’s opinion affirming judgment for defendant in Bustos v. A&E Television Networks, 646 F.3d 762, which occasioned a discussion of falsity in defamation law.  Extrapolation is hazardous, but Bustos might evidence some hallmarks of what will become Justice Gorsuch’s jurisprudential style.

Wherefore art thou Aryan?

Bustos arose from the History Channel’s compelling documentary series, Gangland, in particular the premier special episode in 2007, “Aryan Brotherhood,” which examined the prison gang of the same name.  A super-max inmate in Colorado, Jerry Lee Bustos happened to have been captured by video surveillance in a prison fight.  That video found its way into Gangland, suggesting to viewers that Bustos was a member of the Aryan Brotherhood.  The representation yielded death threats against Bustos in prison, he complained, because the gang itself perceived Bustos, a Hispanic man, as having misrepresented himself.  Bustos sued History parent A&E for defamation.

The essence of the falsity allegation in Bustos was that he was a member of the Aryan Brotherhood.  That allegation carried some additional baggage with it, too.  Considering Bustos’s ethnicity, his membership in a white supremacist organization would carry what the court called a “special sting.”  Moreover, Gangland described murder as a rite of passage prerequisite to gang membership; so in effect, Bustos reasoned, he was cast as a murderer.

Defamation requires falsity.  Historically, the defendant bore the burden of proving truth as an affirmative defense.  But the “constitutionalization” of defamation in the First Amendment jurisprudence of the U.S. Supreme Court in the latter half of the 20th century forced the defendant’s burden in some cases to shift instead to the plaintiff, as a burden to prove falsity.  The ultimate reach of constitutionally compelled burden-shifting is still disputed today.  But many states by common law or statute have anyway moved the burden to the plaintiff.  The notion of requisite falsity is well ingrained in defamation law now, so a defendant’s motion for judgment on grounds of no false assertion is a routine move.

Dissecting the requirements of Colorado defamation law, the court, per Judge Gorsuch, observed the requirement that a defamatory statement be materially false.  Inconsequential error does not render a false statement “false” in defamation law.  The materiality requirement “works as a screen against trivial claims.”  The relevant touchstone is the effect on the reputation of the plaintiff.  The court must “assess the materiality of a misstatement by comparing the damage it has done to the plaintiff's public reputation to the damage the truth would have caused.”

That analysis did not put Bustos’s claim in a favorable light.  He had an association with the Aryan Brotherhood, if not a membership.  In the past, “Bustos [had] agreed to receive balloons filled with heroin from a prison visitor; insert them into his body; and then pass them along to three prison gangs, including the Aryan Brotherhood.”  When the plan was busted by prison authorities, “Bustos sent a handwritten apology to an Aryan Brotherhood leader,” calling him “bro” with “respect,” promising the balloons would yet be delivered, and sending regards to other members.  The court concluded that in the estimation of the Gangland viewer, as to Bustos’s reputation, membership in the gang was not materially different from conspiracy or aiding and abetting.

Though card-carrying membership was an important distinction to the Aryan Brotherhood, and consequently to Bustos, the court refused to recognize defamation within so select a community, citing Colorado law.  And as to the allegation that the public might infer that Bustos committed a murder, well—“we all know now that Mr. Bustos has at least one brutal gang-related attempted homicide in his past.”  The court found again immaterial to public perception of Bustos the difference between his past attempted murder and an implied murder as rite of gang membership.

What does Bustos say about Gorsuch?

It’s dangerous to extrapolate much about a judge from written court opinions—much less just one—which might say more about the law and facts of a case, or the style of a judicial clerk, or the temperament of a judicial panel than about the reputed author-judge.  But that never stops broadcast news, and this is just a blog.  So cautious not to take ourselves too seriously, let’s jump in.

There is delicious evidence in the opinion of Gorsuch’s affection for originalism.  The court offered a short history of the truth defense in common law defamation—and that wasn’t really needed to decide the case under contemporary Colorado law.  After expounding Colorado’s current definition of defamation, the court dug in to the falsity requirement.  The court taught that historically, truth was said to aggravate defamation, rather than to exonerate the defamer.

Even truthful defamation demanded punishment because of its tendency, in the Star Chamber’s estimation, to “incite[] ... quarrels and breach of the peace, and [to] be the cause of shedding of blood, and of great inconvenience.” De Libellis Famosis Case, 77 Eng. Rep. 250, 251 (Star Chamber 1606). Still, this only tells at most half the story. For its part, English tort law took a very different turn, denying compensation to a party truthfully defamed. It did so on the theory that if the statement is true, the plaintiff hadn’t suffered any injury—or at least not any injury he didn’t well deserve. 3 William Blackstone, Commentaries. So, in a twist worthy of an award from the Circumlocution Office, the truth could spare a defendant of liability in civil court only to condemn him to prison in a criminal court across the way.

This is like softcore porn for legal historians.  The Star Chamber in 1606: same year Guy Fawkes was executed, and King James awarded the Charter of Virginia.  Blackstone’s Commentaries on the Law of England, published 1765-69: font of Anglo-American common law, and a cipher key for Benedict Arnold.  And then a bureaucracy joke to round out the paragraph?  Does it really get better than this?  You know, for lawyers?

And then it does get better.  The court devoted significant space to a theory of falsehood called “the incremental harm rule.”  The opinion gives “e.g.” props to a law review article on defamation by lawyer Kevin L. Kite, 73 N.Y.U. L. Rev. 529 (1998); I like to see that nod to an academic assist.  The incremental approach analyzes falsehood relative to different statements about the plaintiff within the same publication.  The court wrote that Colorado has not adopted the incremental approach, and that’s what’s interesting.  Again, here, ink is spent on a monolog that is not really needed to decide the case.  The court goes to some length, relative to this short opinion, to explain the shortcomings of the incremental approach.  The rejection of the incremental approach is further illustrated by a hypothetical starring—wait for it—

Benedict Arnold:

[E]ven more troubling is the [incrementalist] doctrine’s breadth. If an article calls Benedict Arnold a thief and a traitor, the “incremental harm” done by the first statement might be nothing compared to the unassailable truth of the second (entirely unrelated) statement, and this would leave Mr. Arnold to recover nothing for the patently false and defamatory accusation that he’s a thief. . . .  Taken to its logical conclusion, moreover, incremental harm analysis suggests that individuals with really bad reputations in one area may be “libel proof” in all areas, free game for the publication of even the most outrageous and damaging lies. Call Benedict Arnold whatever you like; his public reputation is already so soured by his treason that no incremental harm could be done to it. . . .

That’s General Arnold to you.

The court shores up its opinion with ample and appropriate case law.  The first case cited in the opinion after the Colorado definition of defamation is the media defense staple, New York Times v. Sullivan (U.S. 1964).  Once upon a time, the media defense bar lived with the omnipresent fear that the Rehnquist Court would dismantle Sullivan’s powerful, defense-friendly First Amendment doctrine, so it’s interesting to see how Gorsuch invokes the case:

This [truth] defense has, in comparatively recent years, taken on a constitutional patina, becoming not just a feature of the common law but a First Amendment imperative.

1964 to 2011 is “comparatively recent years” for Gorsuch, who himself was born in 1967.  The fellow has a sense of history.  I’m not sure what it says to describe the Sullivan/Gertz constitutionalization of state tort law as a “patina.”  Maybe because a patina can be polished off?  As someone who thinks that the Sullivan/Gertz doctrine went too far and ironically stunted the evolution of fundamental rights—another post for another day—I’m enticed by the possibility.

Judge Gorsuch’s handling of the Bustos appeal is workmanlike.  Reference to British history and the use of a personality from the American Revolution to illustrate a hypothetical—especially when it’s all in dicta—certainly smack of originalism.  But an interpretivist bent is no surprise in a judge tapped in express memory of Justice Scalia. 

Bustos comes off as an erudite opinion, and maybe that sits ill with people, such as Elizabeth Warren, who worry that the Court majority will be disconnected from the trials and tribulations of life for ordinary Americans.  Fair enough, someone whose education resume lists Georgetown Prep, Columbia, Harvard, and Oxford is not your go-to for the experience of the American commoner.  But even Justice Sotomayor went to Yale, so let’s not pretend we’re shopping the whole U.S. News list to populate the federal bench.  As long as we’re playing reindeer games, let’s demand erudition.  I learned something from Bustos.  It’s an opinion I would assign in law school.  That’s a good thing.

The cited “Star Chamber” has unfortunately become a pejorative term, because that English court’s broad powers in equity were too often in its history perverted to the predilections of the powerful.  The story proves Lord Acton’s (and James T. Kirk’s) maxim that power tends to corrupt.  But England had in place none of the checks and balances that the American Framers later developed.  It should be remembered that the Star Chamber was created initially with admirable intentions: an independent judicial body to hold powerful political actors—even monarchs and autocrats—accountable, lest they be corrupted. 

Maybe a sense of history is just what we will need.