🧵 1. Have you ever wondered why reporters don’t seem to hesitate to...
Mike Lee@BasedMikeLee
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Nov 05, 2024
~3 min read
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🧵 1. Have you ever wondered why reporters don’t seem to hesitate to say and repeat things about Donald Trump that simply aren’t true—as if they have no fear of defamation liability?
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2. This sort of thing happens because the Supreme Court, about 60 years ago, invented a First Amendment doctrine that protects the media from defamation liability, at least in lawsuits brought by public figure
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3. If you’re wondering which words in the First Amendment tell reporters they are free to defame activists, politicians, and other public figures without fear of getting sued, you’re on the right track
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4. Nothing in the text, structure, or original public understanding of the First Amendment talks about or even leads logically to an absurd rule insulating the media from defamation liability
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5. The fact that the Constitution doesn’t support this rule didn’t stop the Supreme Court from deciding, in a 1964 case called NY Times v. Sullivan, that a defamation action brought by a public figure cannot succeed unless the defendant acted with “actual malice”
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6. The Supreme Court defined “actual malice” to mean knowledge of the offending statement’s falsity or reckless disregard as to its truthfulness
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7. For obvious reasons, news-media industry loves NY Times v. Sullivan, as it gives reporters and media companies almost a complete pass when it comes to defaming public figures
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8. But the fact that media companies love NY Times v. Sullivan doesn’t change the fact that the Supreme Court invented this doctrine out of thin air
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9. Even if one thinks immunizing media companies from defamation liability might be a good idea for policy reasons, that doesn’t change the fact that it finds no support in the Constitution
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10. As a practical matter, moreover, it’s become apparent that NY Times v. Sullivan disproportionately—indeed, overwhelmingly—helps Democrats and creates a severe disadvantage for Republicans in the political process
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11. Think about it: the media is all but immune from defamation liability when speaking about public figures, including politicians, so—given that the media is almost seamlessly aligned with Democrats—they can hit Republicans basically all they want without fear
And they do!
And they do!
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12. Basically all the media has to do to avoid liability when attacking Donald Trump & other Republican politicians is have some thin, arguable basis to show that when they defamed a Republican, they didn’t know they were speaking falsely
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13. That means they can be negligent when speaking falsely about Republican politicians like Trump
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14. The media will of course insist “that’s not fair to say NY Times v. Sullivan allows us to single out Republicans; after all, the same standard applies regardless of a politician’s party affiliation”
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15. That, however, overlooks the overwhelming, increasingly obvious bias within the news industry in America
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16. So yeah, the “actual malice” standard technically allows the media to defame politicians of both parties equally—but they don’t; not by a mile
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17. Thus, not only is NY Times v. Sullivan wrong because it’s not rooted in the Constitution (but claims to be), but it leaves countless victims of defamation without recourse, encourages lazy journalism, and provides a huge, unfair advantage to Democrats in politics
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18. Some jurists and legal scholars have noted that it may be time for the Supreme Court to revisit NY Times v Sullivan, and that litigants facing this standard should begin making arguments for overturning that unfortunate precedent
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19. Please like and share this thread if you agree that it’s wrong for Democrats to enjoy an unfair advantage arising out of a fake constitutional doctrine created out of thin air by the Supreme Court in 1964
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20. States—not the federal government—are typically in charge of tort law, including laws governing defamation
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21. If any state legislature wants to change the elements of defamation to insulate the media from defamation liability where public figures are involved, it is free to do so
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22. Likewise, if Congress wanted to create a similar “actual malice” rule in connection with a federal defamation cause of action, Congress could do so
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23. But those decisions should be made by elected lawmakers, not federal judges, because nothing in the Constitution requires us to immunize the media in the way the Supreme Court did in 1964
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24. Please follow me if you’d like to see more posts like this one.
