On libel -Jeffrey Toobin in NYRB:

‘Like the earlier authors, Barbas makes the reasonable claim that Sullivan represented a straightforward battle between good and evil. It was, she writes, “one of a string of libel lawsuits brought by Southern segregationist officials against Northern media outlets…to prevent them from reporting on the civil rights movement.” By ruling for the Times, the Supreme Court “freed the press to cover the civil rights movement” and, not incidentally, likely saved the newspaper from being bankrupted by the damages it would have been ordered to pay in this and similar libel cases. But Barbas’s endorsement of the Sullivan decision is more nuanced than those of Lewis and Edmondson, and more reflective of the current moment. She appreciates the need for libel lawsuits at a time when “damaging falsehoods can spread online with a click, and reputations [can be] destroyed instantly.” But she recognizes that the protections of Sullivan are needed as much, or more, by individuals as by media companies. The story of Sullivan, and of the precedent’s possible demise, reveals as much about our own times as it does the 1960s.’

(…)

‘The “segregationist ‘libel attack,’” as Barbas calls it, continued after Sullivan’s victory at trial. Later in 1960, in response to a Times article by the reporter Harrison Salisbury, local officials in Birmingham filed four more libel suits against the Times. A few months after that the Times lost another libel case in Alabama, this one filed by the mayor of Montgomery and based on the same advertisement as the one in the Sullivan case, and it faced another damage judgment of $500,000. “By 1964,” Barbas writes, “officials in three Southern states had brought seventeen libel actions against Northern media outlets, primarily over civil rights coverage, seeking damages of more than $288 million.” By suing their critics, the plaintiffs were engaging in the same kind of resistance that they had mustered to fight the legal demands to integrate their schools, and for the same reason: the libel cases were another way of defending Jim Crow.’

(…)

‘The lawyers were, it turned out, pushing on an open door, because Chief Justice Earl Warren’s Supreme Court was in the process of dismantling the legal superstructure of Jim Crow. Justice Hugo Black, a noted First Amendment absolutist, had recently said that civil libel judgments were like the ancient crime of “seditious libel,” which governments had used to punish critics. The Court had never explicitly held that the crime of seditious libel was unconstitutional, but Black had suggested that it would, if given the opportunity.
Picking up on that idea, when their appeal made it to the Supreme Court in 1964, the Times’s lawyers argued that the civil libel judgment in the Sullivan case was tantamount to allowing the state of Alabama to criminally prosecute the Times for exercising rights guaranteed by the First Amendment. The paper thereby shifted the focus of the case from the right of individuals to protect their reputations to the right of individuals to criticize government.’

(…)

‘rump and some of his advisers began to blame Dominion, whose voting equipment had been used in twenty-eight states, for engaging in fraud that he said cost him the election. Asked about Dominion’s software in an interview with Maria Bartiromo on Fox on November 8, Sidney Powell, a Trump adviser and attorney, said, “That is where the fraud took place…. That’s when they had to stop the vote count and go in and replace votes for Biden and take away Trump votes.” Over the next several weeks Powell and other Trump allies, especially Rudolph Giuliani, returned to Fox to make the same claim. On November 19 Giuliani said that Dominion’s machines were programmed “to give somewhere between a 2 and 5 percent advantage” to Biden.
As soon as these statements were made, Dominion sent a series of protest letters to Fox, asserting that none of what the Trump surrogates said was true. E-mails and texts that came out later in the course of discovery showed that many people inside Fox recognized that the claims about Dominion were false. In blunt, frequently scathing terms, top Fox hosts and executives privately dismissed the claims of the Trump allies. Tucker Carlson, for example, texted Laura Ingraham on November 18, “Sidney Powell is lying by the way. I caught her. It’s insane.” Ingraham responded, “Sidney is a complete nut. No one will work with her. Ditto with Rudy.” Rupert Murdoch, the chairman of Fox, wrote in an e-mail, “Watching Giuliani! Really crazy stuff. And damaging.”’

(…)

‘Before settling with Dominion, Fox’s lawyers offered a straightforward defense: the network was just covering the news. “There is no evidence that anyone in Fox Corporation had a direct role in creating or publishing any of challenged statements in this consolidated case,” the Fox lawyers asserted. “To the contrary, Fox News hosts testified repeatedly that they covered the President’s allegations about Dominion because they were the most newsworthy story of the day.” As Carlson put it in his deposition, “The allegation that the presidential election was rigged by a voting machine company, true or not, is in itself one of the biggest news stories of [our] lifetimes.” And all major news outlets, not just Fox, covered Trump’s allegations. The problem with Fox’s argument is that it has long been true in libel law that a publisher, in any medium, is responsible for all the statements it publishes, even if it is merely quoting others. (This is why Sullivan could sue the Timesover the text of an advertisement.)’

(…)

‘On April 18 the two sides settled, with Fox agreeing to pay Dominion $787.5 million. The vast sum brought a measure of comfort to both companies; it compensated Dominion for the reputational damage it suffered, and it spared Fox the likely embarrassments that a trial would have produced as well as the risk of an even larger award from a jury. But since the case never reached any appeals court, much less the Supreme Court, the legal issues underlying the lawsuit were left unresolved. The most important of these is the status of Sullivan itself.’

(…)

‘Thomas and Gorsuch offer an “originalist” and “textualist” argument against Sullivan. To be sure, there is a plausible case that the framers did not specifically have the actual-malice standard in mind. But the problem is more with originalism and textualism than with Sullivan. The genius of Brennan’s solution was that he upheld the value at the heart of the First Amendment—the right to criticize the government—while also preserving the tort of libel. The strength of Dominion’s case and Fox’s willingness to settle for so much money refute the justices’ contentions that the Sullivandecision effectively killed the ability of anyone to sue for libel. And the continued existence of a robust and free press over the past six decades vindicates the balance that Brennan struck.’

(…)

‘But in those days Kavanaugh was bound by Supreme Court precedents. Now he can create them—or overrule them.
If any of the other libel cases coming out of the 2020 election are not settled before trial, they may well serve as test cases for Sullivan. If the Court rejects Sullivan, as it did Roe, that would lead to a similar result: returning the issue to the states and allowing each one to design its own rules for libel cases.
In states dominated by Democrats, the courts or the legislature would probably restore the Sullivan status quo with alacrity. Barbas’s book gives a pretty good idea of what would happen elsewhere. In red states today, the mainstream media may be even less popular than it was in the 1960s, so it’s hard to imagine that authorities there will create any rules that provide rigorous protections for journalists and other speakers. Unlimited liability for trivial errors could return.’

(…)

‘ And just like the Times and the ministers, these imperiled speakers would eventually look to the Supreme Court for vindication of their First Amendment rights, but they would likely find a very different reception than the Sullivan defendants did in 1964.’

Read the article here.

It’s still an open question whether the threat of libel can kill freedom of speech.
We know that the libel laws in the UK are a secret weapon for Russian oligarchs.
The Dutch government just made Holocaust denial unlawful. It’s an open question how far the government should go to weed out antisemitic or racist speech. Especially when there is so much debate about the question where this speech begins.

The idea that libel claims will clean up media and social media as well is a bit frivolous.
The abuse and the destruction caused by libel laws is going to be immense.

But as is noted, to do away with libel laws will leave citizens utterly unprotected. The wisdom of the courts might not save us, but will postpone Armageddon.