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Today is the day when President Donald Trump will supposedly be announcing the “losers” of the Fake News Awards. In anticipation of this spectacle, Trump did his own version of a red-carpet trot last week by repeating his intention to review the country’s libel laws to the benefit of those wronged by the media. This pronouncement was met with scoffs from many journalists, who reassured themselves once again that Trump could do no such thing as defamation is spelled out in state laws beyond Trump’s grasp and limited by the First Amendment. If the standards are adjusted on what plaintiffs must show to prevail in a libel case, goes the conventional wisdom, that would have to be something dictated by the U.S. Supreme Court.
While that much is true and there’s no reason to believe the high court is prepared to back away from requiring public figures to demonstrate knowledge of false statements or reckless disregard for the truth, many in the media are still swaggering at what Trump might indeed accomplish on the defamation front. Although Trump can’t make these lawsuits any easier for plaintiffs to win, he can still do great damage by upping the nuisance and expense of a defamation claim.
Media outlets are routinely hauled into court for what’s published, but why defamation isn’t a bigger deal in the news industry goes beyond the constitutional principles articulated in cases like New York Times Company v. Sullivan, which established an actual malice requirement for famous plaintiffs. For starters, almost every media organization holds insurance policies that provide comfort. Then, there’s the fact that under state anti-SLAPP statutes, judges often weigh a plaintiff’s likelihood of prevailing in dismissing lawsuits at an early stage before they become too bothersome.
When media companies must go the distance in a defamation lawsuit, the litigation can become quite expensive. For example, a document revealed in court this past week showed that ABC News had to budget $18 million to defend a beef manufacturer’s suit over a product it disparagingly called “pink slime.” ABC didn’t lose at trial, but fighting before a jury in South Dakota (a state that overwhelmingly voted for Trump), it then paid an additional $177 million to settle claims. ABC’s insurers put up even more money for the settlement, and if this sort of thing became the norm, one would expect insurance premiums to rise and much smaller news organizations that couldn’t handle the expense to perhaps err on the side of caution in response to any pre-publication defamation warning.
Trump may not be able to do anything about actual malice, but what he could attempt to accomplish is legislation messing with procedure in federal courts to give plaintiffs a better shot at surviving the early rounds in a lawsuit. What’s more, he could direct federal agencies to cooperate with investigative efforts by plaintiffs or nudge the Solicitor General to file friend-of-the-court briefs in key defamation cases. Doing all this might potentially deliver a pernicious form of tort reform — one in favor of a guy like Trump whose many lawsuits before taking office included suing a journalist for calling him a millionaire rather than a billionaire and suing a comedian for suggesting he was the spawn of an orangutan. The prospect of forcing media outlets into more expensive cases could also incentivize lawyers to accept defamation cases on a contingency fee basis in hopes of scoring settlements.
Why mention any of this?
One, the media establishment is wise to consider all the possibilities, even the most distasteful ones.
And two, there’s another direction where defamation law can go. Over the years, various lawmakers have discussed a federal anti-SLAPP law designed to deter both frivolous legal claims impinging free speech as well as forum-shopping by plaintiffs looking to place their claims before the most generous judges and most punishing juries. And if lawmakers cannot be convinced to protect the sacred democratic institution of a free press, then there’s always the option of last resort: using those same defamation laws to combat anyone who would dare denigrate the professional integrity of a hard-working reporter by suggesting that an accurate story is “fake news.”
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