A question for Ron DeSantis
Why do you want to weaken NY Times vs. Sullivan?
As I write this, Florida Governor Ron DeSantis is making his first political trip to Iowa. A question I would love to ask him is why he wants to weaken the Supreme Court’s gold standard case law that protects Americans from frivolous defamation lawsuits? Why does he want to silence his critics? Not just media critics, but ANY American who would dare to disagree with him?
In the 1964 case New York Times Co vs. Sullivan, the Supreme Court unanimously set a high bar for successful defamation lawsuits. Knowing that journalists sometimes make mistakes, the high court said it’s not enough for a well-known public figure to prove a story is wrong. One must also prove that the journalist knew it was wrong beforehand (the “actual malice” standard), or that the journalist recklessly disregarded the truth.
Gov. DeSantis supports two bills making their way through the Florida house and senate, where Republicans have super-majorities like they do in Iowa. Both bills would do away with the “actual malice” standard, replacing it with language that a public figure suing a critic would only need to prove negligence. Negligence is much easier to prove than actual malice.
This is relevant now because of the Dominion Voting Systems lawsuit against Fox News. Normally, a plaintiff suing a news organization has great difficulty proving actual malice, because it requires getting inside the mind of the journalist prior to publication of the story. It’s hard to prove what anyone was thinking at a certain point in the past. But in this case, Dominion has lots of evidence, in the form of text messages between Fox News executives and anchors showing they didn’t believe Trump’s lies of a stolen election, but they continued to put those lies in their newscasts anyway, to not alienate conservative viewers.
The move by DeSantis and his Republican legislature is yet one more step in the conservative war on traditional journalists. DeSantis, and Trump, and our own Governor Kim Reynolds are powerful people who don’t like being investigated, or even having light shone on what they do. Although Reynolds has not proposed any changes to defamation law in Iowa, she tends to walk in lockstep with DeSantis on many issues, like pushing back against pandemic lockdowns and giving public tax dollars to private schools. DeSantis rarely gives interviews or news conferences. Same for Governor Reynolds, who hasn’t done a news conference since last summer. Let’s hope she doesn’t copy DeSantis’ attack on established defamation law.
The move to weaken Sullivan isn’t just an attack by conservatives on what they perceive as a liberal mainstream media, because weakening Sullivan would hurt conservative media, too. In fact, Fox News is using Sullivan as a defense in the Dominion lawsuit. All critical voices, on both sides of the spectrum, would be leery of criticizing those in power for fear of a lawsuit. Weakening Sullivan would hurt individual Americans who might spout off in social media. It would hurt smaller news outlets far more than major media organizations which have the money and legal firepower to vigorously defend themselves.
I suspect DeSantis and the Florida legislature will pass one of these bills, hoping that journalists will sue so the case can move up to the U.S. Supreme Court, where at least several conservative justices have indicated a willingness to take another look at Sullivan. That is a scary prospect, because this court has proven it will tear down long-established case law.
I’ve spent my entire career as a journalist and have vigorously defended our right to do hard-hitting stories on those in power. The news organization I led was sued once during my tenure for defamation, and it was a miserable experience to go through. I sat at the defendant’s table for seven long days, watching an aggressive plaintiff’s attorney grill our staff members in minute detail about one decision made on the day the story ran, one decision made out of hundreds that journalists make every day, day after day. Fortunately, we had excellent defense attorneys, and the jury took only 45 minutes to decide that our story was true. Even if our story had been wrong, which it wasn’t, I took comfort in knowing the plaintiff’s attorney had a high bar to clear. He had to prove that we KNEW the story was wrong and went with it anyway. And we have The New York Times Co. vs. Sullivan to thank for that.
So if you run into Governor DeSantis over the next few months, you might want to ask him why he thinks it’s a good idea to make it easier to sue those who might criticize his authority.
Please check out some of the others in the Iowa Writers’ Collaborative:
Excellent, Dave!
Another excellent article Dave. DeSantis in my opinion, wants to rule and not govern. He like Trump and our governor seek to expand their power. We have to be on guard for those that want to slowly and maybe not so slowly erode our democratic values.