DeSantis’ “Actual Malice” Problem

A law prof emphatically made the point, that while Florida’s governor seems to be on a drunken unconstitutional law enactment spree, until such time as some of the goofier bills become law, and aren’t laughed out of court as unconstitutional crap, they’re not worth getting too worked up about.

After all, performative bills are nothing new, and until they actually become law and are sustained, they’re just plays put on to soothe the fevered breasts of useful idiots Laugh or cry, they don’t matter until they matter. One such performative law seeks to undo the seminal 1964 Supreme Court decision in New York Times v. Sullivan. Ron DeSantis doesn’t like it.

The Supreme Court, in a case that dates back nearly 60 years, ruled that even if that speech might be damaging or include errors, it should generally be protected against claims of libel and slander. All three would lose that protection — and be subject to ruinous defamation lawsuits — under a bill that is moving through the Florida House and is based on longstanding goals of Gov. Ron DeSantis.

The bill represents a dangerous threat to free expression in the United States, not only for the news media, but for all Americans, whatever their political beliefs. There’s still time for Florida lawmakers to reject this crude pandering and ensure that their constituents retain the right to free speech.

It is a bad law, a dumb law, an unconstitutional law, at least given the current state of constitutional law.

It would change the definition of actual malice to include any allegation that is “inherently improbable” — an impossibly vague standard — or that is based on what it calls an “unverified” statement by an anonymous source. In fact, it says that all anonymous statements, a crucial tool for investigative reporting, are “presumptively false” for the purposes of a defamation case.

Under the bill, a public figure would no longer need to show actual malice to win a defamation case if the allegation against the figure wasn’t related to the reason for the person’s public status. So if a person is publicly known for being elected president or governor, and a news organization publishes an investigation about that person’s private or business life unrelated to elected office, that report would not get the special liability protection provided by the Sullivan decision.

And there’s more wrong with the law in its efforts to put criticism of public officials at grave risk. The point, for First Amendment purposes, isn’t merely that the law contradicts Times v. Sullivan, but that it will have a grave chilling effect on the media and pretty much any speaker against public figure. After all, winning a defamation case after 4 years and half a mil in legal fees isn’t nearly as cool as one might think, though it does beat losing.

But this law, bad as it is, raises some questions that deserve some thought. On the one hand, the Supreme Court’s decision, creating the “actual malice” standard for a public figure suing for defamation basically pulled it out of its butt. While it can, and has, been met, it’s extremely difficult to overcome as it was meant to be. Neither people nor the media should fear taking elected officials to task, even if their criticisms are harsh and wrong. Sure, it would be better if they were always right, but being correct is often relative and disputed, and oftentimes there are legitimate arguments or attacks that turn out to be false. Stercus accidit, but that shouldn’t put media at risk of suit.

All this, however, anticipates good faith on the part of the media and critics. The Supreme Court decided Times v. Sullivan back in the good old days, when journalism aspired to be objective. The decision presumed that, right or wrong, reporters were acting with the best of intentions to get things right, and so deserved as much protection from venal public figures who would attack rather than have their warts exposed as possible. Is that still the case?

Many in the media have taken to heart the notion that since perfect objectivity cannot be achieved, why bother trying? Or to be a bit more cynical about it, they believe they are entitle to report with “moral clarity,” and are thus freed from the constraints of facts to write stories and op-eds reflecting their “correct” vision of what the facts should be so that readers reach the “correct” understanding of the story.

In other words, they may fib a bit, whether to commission or omission. and publish stories that tell lies about public officials they deem evil. And they’re proud of themselves for it, because they are the good people fighting for goodness and puppies.

This was not the state of journalism for which Times v. Sullivan was written. And the mere fact that the reporting may be less than accurate does not necessarily rise to the level of actual malice, particularly given the plethora of ancillary legal safeguards such as substantial truth, opinion or reliance on sources whose identities are protected.

This is not to suggest that calling MAGA pols “fascist” should give rise to defamation any more than calling Trump orange, smelly and plump. But when there is a push combined with a progressive rationalization to eschew unsupportive facts and twist a few to damn those deemed appropriately damnable, would the Supreme Court have held that to deserve the heightened protections of Times v. Sullivan? While the actual malice standard, for better or worse, enabled generations of journalism to reveal some of the worst abuses by government and public figures, that was when journalism’s purpose was to tell the story, not destroy its enemies. If it’s weaponized against the truth, reporters may give rise to revisiting the law that’s protected them for generations.