Panelists discussed a wide range of speech-related topics, from the Bill of Rights to the recent bomb threats to Columbia’s campus.
Columbia Journalism School’s Knight First Amendment Institute hosted a talk in the World Room of Journalism Hall Thursday to discuss the relationship between the press and the courts, particularly with regard to individuals’ right to sue media outlets for defamation. Three panelists and one moderator comprised the discussion.
After a brief introduction by Steve Coll, dean of the School of Journalism, moderator Genevieve Lakier, Professor of Law at the University of Chicago, began by speaking on New York Times v. Sullivan, a 1964 Supreme Court case which protects libelous statements about “public figures” which was the central focus of the talk. Sullivan came about amid the Civil Rights Movement and Southern segregationists’ qualms with advertisements made by supporters of civil rights, and it set a standard of intended “actual malice” for a statement to be libelous. It has since been decried as “judicial activism,” and even liberal Justice Elena Kagan has written that Sullivan may “insulate” the press from accountability.
Lakier then opened up to panelists by asking whether they think Sullivan should be overruled. Panelist Robert Post, the Sterling Professor of Law at Yale, spoke first, at first declaring that he is an agnostic on the question but later moving to be more of a rhetorical defender of Sullivan within the panel. Panelist Nabiha Syed, a litigator for news startup The Markup, then questioned the very premise that Sullivan is the reason why misinformation has traction in the contemporary “information ecosystem.” Factors like culture and political context surrounding attitudes toward the press matter more, she said. Panelist Carrie Goldberg, a lawyer who frequently represents plaintiffs in defamation cases and deals with the first amendment ramifications of actions like revenge porn, said that Sullivan has implications even in her profession.
The mic then returned to Syed, who spoke on the “actual malice” standard, revealing that it is difficult to prove in court and must be shown through the discovery process; from her perspective it, and Sullivan, are not often invoked. Post then gave some historical context for libel law in the United States. He reflected that a fundamental, innovative principle of American government, enshrined in the Bill of Rights, is that it should be subordinate to the people and therefore open to a wide range of criticism, as opposed to a monarchy which can punish people for their criticism. “You cannot have a democracy without public opinion,” he summarized.
Lakier and Syed then pondered the nature of a public figure, adding that “public-”ness can now be conferred involuntarily through viral fame. The line between celebrity and publicly accountable figure, meanwhile, continues to blur. Syed cited Kanye West as an interesting example of a celebrity embedding himself in the political conversation and thus potentially subjecting himself to “public concern.” Lakier and Post added that a “public figure” and “public concern” have narrow definitions and present issues given the role of social media.
Goldberg added that these high standards pose difficulties for her clients, whose cases are often dismissed by judges prior to discovery, when proof of “actual malice” can be established.
Post then gave a definition of “the public,” which includes the “anthropomorphic” population of everyone who has access to the news and can form opinions thereon. Thus, the panelists agreed that the Court’s specification of “public figures” rather than just “public officials” is warranted because matters involving anyone who is well-known by the public are important to public opinion.
Syed later complicated the idea that cases of defamation will always lend themselves to clear plaintiffs and defendants by mentioning the QAnon theory that John F. Kennedy Jr. will return to life and catapult Donald Trump back into the presidency; this idea, she claimed, is harmful to “public sensibility” but doesn’t bear a clear plaintiff. Post thought the root of this dilemma may be the muddling of fact and opinion; plaintiffs must prove that “negligence”, i.e. a factually incorrect statement, has been committed to receive damages for defamation.
Goldberg, responding to an audience question on the topic of defining litigants, noted that the opposite can also be true in that plaintiffs in defamation cases can sometimes lack defendants, especially considering that social media platforms are immune from suit for reputational damages to users according to Section 230 of the Communications Decency Act.
Continuing on this point, Lakier noted that the Court assumed in Sullivan a certain level of “professionalization” of the press and that the press has conversely since “de-professionalized.”
When Bwog asked about the case of the recent bomb threats issued through Twitter to Columbia and numerous other universities and whether Section 230 stands in the way of accountability for the perpetrator(s), Goldberg and Post responded that Section 230’s statutory protection of Twitter from liability in the case is an issue, but subpoenaing Twitter to de-anonymize the perpetrator(s) is possible, and could be made easier through legislative reform. Additionally, they noted that the perpetrators’ impersonation of Jia Nakamura to deliver the threats is a clear example of prosecutable defamation.
Syed and Post finally noted that the doctrine of “neutral reportage” stops numerous cases from reaching litigation, and that the prospect of insurance liabilities for news agencies looms large in the realm of defamation cases.
Journalism Hall via Bwog Archives