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Q: Do journalists get away with libel since it’s so hard to prove?

Credit: Jimmy Margulies

A:

You’re right that there is quite a high bar in the United States for public figures to prove libel, which is essentially a false statement that harms a person’s reputation. The First Amendment and the U.S. Constitution provide some of the most robust legal protections in the world for journalists and the freedom of speech. And that’s by design. Without this legal backing, the press would be unable to play its watchdog role or criticize public officials.

The balance between libel law and the First Amendment shifted dramatically in favor of the press in 1964 with the landmark Supreme Court decision in New York Times Co. v. Sullivan. In this case, a Montgomery, Alabama police commissioner L.B. Sullivan claimed personal injury to his reputation after the New York Times published an ad that criticized how local police treated civil rights protestors. The ad did contain several factual errors, but in a unanimous opinion written by Justice William J. Brennan Jr., the Supreme Court ruled for the New York Times, stating:

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

In effect, that means that a public official must not only prove defamation but also that any factual errors were made intentionally with full knowledge that they were false or a reckless disregard for the truth on the part of the reporter. So, a very high bar indeed, but that doesn’t mean the press is getting away libel or abusing its constitutionally protected freedom. 

Credit: Reporters Without Borders

In fact, the United States ranks behind most other Western nations for press freedom, according to Reporters Without Borders. Even with strong legal precedents, the U.S. comes in at 45th in the World Press Freedom Index that ranks 180 countries on their protection of media freedom.

Norway, Finland, Denmark and Sweden top the list while the U.S. remains behind at least 40 other countries because of violence against U.S. journalists, including  the murder of Washington Post contributor Jamal Khashoggi and five Capital Gazette employees in 2019 as well as restricted press access to events of public interest, bomb threats in newsrooms around the country, and anti-press rhetoric like calling the journalists “the enemy of the people.”  

This hostile environment is endemic of a deterioration of press freedom in the United States, according to Freedom House.  In its report, “Freedom and the Media: A Downward Spiral,” it states, “Although key U.S. news organizations remain strong and continue to produce vigorous reporting on those in office, President Donald Trump’s continual vilification of the press has seriously exacerbated an ongoing erosion of public confidence in the mainstream media. Among other steps, the president has repeatedly threatened to strengthen libel laws…”

Legal experts say changing U.S. libel laws won’t be easy given that most are made by states and backed by Supreme Court precedent, but the president may have at least one powerful ally who agrees. Just one year ago, Justice Clarence Thomas said the landmark libel ruling, New York Times Co. v. Sullivan, should be reconsidered.