Not being lawyerly, what are the arguments for and against overturning Sullivan, given any crackpot media can say anything and mainstream media can cover that. Should anything change?
Source:
“Mistakes”. Yep, that’s certainly what happened. They were just walking down the street when all of a sudden they accidentally alleged that the election was stolen.
In general, I think, you’re trying to balance a few different things:
- The ability for the public to debate ideas
- Preventing liars from spreading lies
- Not giving the government the ability to decide who is a “liar”, and censor them
- And, likewise, not giving some majority of the populace the ability to decide who is a “liar”, and censor them.
If you ignore #4 then you can pretty well have any standard safely because, at the end of the day, a jury of ordinary, reasonable citizens are the ones making the decision and not the government.
In my life, I’ve seen the UK get caught unawares by scandals like the Jimmy Savile, where some journalists had a reasonable suspicion against the man during his life but were restrained from reporting on it because the danger of making a false accusation in the UK is great.
Meanwhile, I’ve seen here in the US that the average quality of news is one step short of endorsing alien abductions and terrorist conspiracies by half the populace against the other half. The finish success of that sort of news makes me skeptical of ignoring #4.
It would cost millions of dollars to sue any particular entity for that, almost no one has standing against any of it, you’d probably lose almost any case against one of these entities, and they might be able to figure out how to avoid paying.
I think it’s reasonable to say that there must be some middle ground between those two.
Whether that’s a matter of changing Sullivan or not, I don’t know. I could argue that modifying the stock market to reward long term good decisions, rather than focusing on short term returns might be more useful. Likewise, it could be that the real need is reform of the legal world to punish lawyers for bad behavior more easily and more completely, to prevent lawyers from being able to profit from their employers if they are disbarred, to make the legal process faster, and to make the legal process cheaper/subsidized for small plaintiffs.
To take an example from ordinary life, you can almost always win as the good guys in One Night Ultimate Werewolf if you simply point at each person, going clockwise, and ask them what they saw during the night. When you go fast and don’t allow discussions, the bad guys can’t come up with cohesive lies nor raise any credible doubts about anyone else.
The idea that a slow and deliberate legal process is going to be more accurate isn’t necessarily true. Too fast and, sure, you’re not going to get all the information and you’re not going to analyze it correctly. But too slow and a smart and financially mighty defendant can run their opponent out of resources, writing evidence, and then razzle dazzle the yokels in the jury box, having denied them access to most evidence that should have been procured.
An even and consistent tempo, regardless of participants, and equality of resources on both sides in the match might be more important than the standards of guilt.
If someone can’t effectively without evidence, they can’t bullshit the jury, and they’re guilty of they acted with actual malice, that might be sufficient.
Typos in the previous: “The financial success of that sort of news”, “run their opponent out of resources, withhold evidence, and then razzle dazzle the yokels in the jury box”.
Stupid autocorrect.
What do you mean “based on Dominion”?
That was a settlement; legally nothing actually happened and there was no trial.
It’s easy for the media to protect itself. Fox was sued for making false statements under their own name and endorsing the false statements of others. They could have let others tell the same lies over and over again without expressing their agreement and pointing out the lack of evidence supporting those lies and avoided all of this. The same for the rest of the news media that for some reason thinks there is value to their opinions and conclusions instead of reporting information and the sources they use obtain it.
Also, Sullivan essentially applies to public officials, not news media. In other words, if a public official or organization wants to sue for defamation, there’s a higher standard for them to meet than some other private citizen or organization.
Dominion didn’t have anything to do with that.
There is no “based on Dominion”.
A settlement has no precedential value.
Let’s say that a man points a gun at a woman and says, “Give me your money.” Now, clearly, the presence of the gun is irrelevant because it was never fired? Or did ownership of the gun influence his confidence level in being able to pull off a successful heist? And did it influence her decision to buckle, easily?
Whether the Sullivan ruling ever strictly came into play or not, it still influenced all of the decision making - from how comfortable Fox felt about peddling lies, to how much money they were willing to spend to make the problem go away.
People can envision likely future scenarios and make decisions based on the probable outcomes. Not testing those scenarios doesn’t mean that they didn’t affect the decision making of the various actors.
If you’re saying that a settlement emboldens Fox, I don’t think that’s true at all. If anything, having to cough up 800 million in the settlement and the threat of being on the hook for twice that likely scared the bejeezus out of them (why else would they settle for so much?)
I’m still not quite following what Sullivan has to do with this particular settlement/case. If it were to come into play with Fox, it would be in the line of Fox saying defamatory BS about Biden or other Democrat politicians, and the higher bar for defamation that they have as public officials as a result of Sullivan.
Fox saying bullshit about another private company wouldn’t have anything to do with Sullivan at all. It’s just garden-variety defamation.
Sullivan protects news organizations from getting sued over minor errors (in the original case, concerning an ad in the New York Times soliciting donations for Martin Luther King’s legal bills, one of the alleged defamatory statements was saying that he had been arrested 7 times, when it had actually been just 4).
Such an ability has a chilling effect on reporting the news. In fact, it was a tactic during the civil rights era used by southerners to go after the news organizations reporting on the civil rights movement.
There is no good reason to overturn Sullivan. Unless, that is, you’re a politician who wants to threaten reporters into silence.
I believe Dominion became a ‘public figure’ (and thus subject to Sullivan’s enhanced standard) by virtue of the criticism levied against them.
You can become an unwilling public figure when something happens that makes you notorious.
Pretty sure public figure means government official or organization in the context of Sullivan, considering that the original case was the public safety commissioner of Montgomery, AL suing the NYT for defamation, because they ran an ad that got some of the details wrong about the civil rights struggles in the city. It was clearly intended to intimidate, and the decision of the court was to put a higher standard for defamation suits by public (i.e. government) figures than it would for private entities. Put simply, it’s a check on the government using defamation suits as a tool to intimidate its opposition.
Really…they ought to be referring to Curtis Publishing Co. v. Butts as much as Sullivan; that’s the case that extended the “actual malice” to “public figures” instead of public officials.
Either way, I don’t think Sullivan itself should be overturned, although maybe Butts might should be. I don’t really see why the “actual malice” protection ought to be there between private individuals- civil court’s nature of not being guilty/not-guilty and having variable damages and liability can handle that sort of thing just fine.
I’d be okay if there was a narrowing of the definition of ‘public figures’ to only include those people who have their own independent power to respond publicly to the supposed defamation- the idea being that a “famous person” has a platform in which to respond to those slights which aren’t actual malice, but a person who was made famous by circumstances outside their control should not be held to such a high standard.
I mean, Dominion can’t possibly compete with Fox News for air time. They shouldn’t have to prove actual malice with regard to lies about them.
The Dominion/Fox News lawsuit seems like an egregious case, an outlier that shouldn’t be applied with a broad brush. What Fox News did isn’t the normal behavior of a news organization.
When Alex Jones was sued and failed to show up to court he had a summary judgement made against him. That also is extremely rare and shouldn’t be used as precedent, because that sort of thing almost never happens.
If someone is driving a convertible and is struck by a meteorite and killed, I don’t think that should lead to vast safety regulations in vehicles to prevent it from happening again. It probably won’t happen again, or it will almost never happen again.
Yeah, there ought to be some sort of exception for people suing media companies like this; Dominion wasn’t anyone I’d ever heard of, until Fox started blathering about them around election time and other outlets picked that up as part of their broader post-election coverage.
They shouldn’t have had to prove actual malice, just being mentioned in the context of Trump and the post-election shenanigans ought to have been enough for them to sue successfully.
There should be a different standard for media companies; a media company deliberately saying falsehoods about a person or a company is far more of an existential threat than another private citizen or company doing so, because of the reach of the media company versus the reach of another private citizen/company.
Based not on the trial but on the underlying reasons such an action was deemed necessary. It can be hard to make a thread title precise yet capture every nuance.
Had the trial gone ahead, presumably it would have been argued people claiming what they knew and privately said was false represents a degree of malice. However, the woodwork has changed over the decades. The media should be free to report on public figures, as said, with the platform to defend themselves. The common trope of reporting on what a clearly unreliable source says, without seeming verification or clarification, has done much to discredit the media in the first place regardless of whatever lofty standards are claimed.
It’s quite rare for people to fail to show up to court when sued, but that’s not subject to questions of precedent, because that wasn’t about the court’s decisions, but just about Jones’s. And in the rare case that someone does fail to show up to court, it’s quite common and precedented for the judgement to go against them.