Mud-slinging is free speech – some “mud” will stick, and some “mud” can be expensive to remove.
This Tuesday, the U. S. Supreme Court will entertain oral arguments from petitioners who, in effect, contend that the First Amendment affords protection for lies – in the context of a political campaign.
The petitioners are political action committees (the Susan B. Anthony List, which is committed to female candidates who oppose abortion, and COAST, the Coalition Opposed to Additional Spending and Taxes). These PACs seek to thwart the Ohio Election Commission, which had sought to bar the PACs’ billboard ads that allegedly lied about a Congressional candidate’s positions. The OEC applied a state law that makes it a crime to knowingly make false statements about a candidate for office or a ballot proposition.
Is there a Constitutionally-protected right to lie? Or, can a state statute invest a state agency with the right to suppress a lie, without violating the First Amendment?
In an amicus brief, Ohio’s Attorney General has expressed his doubts about the statute’s Constitutionality: “In practice, the Ohio false- statements statute may chill and penalize speech at critical times immediately before elections.”
If the statute is upheld, the candidate who claimed that the ads were intentionally false and misleading – were designed to damage his reputation and hurt his bid to retain his seat in the U. S. Congress – may think about reviving his libel lawsuit. And so will others.
The Ohio freedom-of-expression case (SBA List, et al, petitioners v. Steven Driehaus, et al) will be heard just weeks after the 50th anniversary of the U. S. Supreme Court’s landmark libel law ruling in New York Times v. Sullivan. That 50th anniversary occasioned celebratory conclaves, forums, and columns. But those celebrations did not touch on the fact that the newspaper’s 1964 victory came at a cost – a cost that The New York Times Company was able to absorb (in 1964 defense dollars). But these days, as to libel litigation, how much tolerance or “stomach” – and cash reserves – do publishers and disseminators have?
The Supreme Court’s recent ruling in McCutcheon v. Federal Election Commission, along with its 2010 decision in Citizens United v. FEC, will open many checkbooks wide and keep them open right up to November 4, 2014 – and again right up to November 8, 2016.
How much malice can a publisher afford?
Given the kind of advocacy ads (editorial ads and advertorials) that those checkbooks will buy, it may be prudent for media companies that host Web sites, sell air time, and provide print pages and billboard space, to
- Re-evaluate their advertising acceptance policies and procedures.
- Toughen up their indemnification provisions and hold-harmless clauses.
But given the venom and vitriol of political denigrations (vintage 2014),
- Can pre-publication precautions wholly exculpate or exonerate?
- Will indemnification provisions and hold-harmless clauses hold up and absolve?
- How much intentional defamation will be judged tolerable under the First Amendment?
- Will ad revenue provide a sufficient reserve to absorb litigation costs?
To overturn a $500,000 jury award, the U. S. Supreme Court fashioned a higher threshold of fault for defamatory falsehoods regarding a public official’s official conduct.
On March 29, 1960, The New York Times published a full-page advocacy ad that aired very legitimate Civil Rights grievances – but aspects of the ad’s most condemning accusations were false, untrue; and, arguably, reputation-damaging. The newspaper was judged liable for libel by a jury, a trial judge, and the Supreme Court of Alabama.
For a greater good, a higher purpose, the U. S. Supreme Court decided that the falsehoods had to be endured.
In March 1964, the Court announced a contrivance: an inexact calibration that would provide leeway for reputation-damaging accounts, descriptions, depictions, portrayals, characterizations of, and insinuations about, those whose positions involve public trust; positions that should rightly subject office-holders and office-seekers to public scrutiny and accountability. Most assuredly, that Actual Malice standard, on balance, was and is a good one, a sensible and rational one:
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.
Pre-publication laxity (inattention to possible inaccuracy): Evidence of “Reckless Disregard”?
The defamatory falsehoods embedded in the ad published by The Times on March 29, 1960 could have been detected if The Times had adhered to its own Advertising Acceptability Standards.
While The Times had review procedures in place that should have prompted some vetting of the advocacy ad’s accounts of police excess and its accusations of racially-motivated mistreatment, the ad was not subjected to any scrutiny. The advertising acceptance staff did not compare the ad’s assertions with the newspaper’s own reporting of the same events and encounters. The staff did not check with the newspaper’s own reporters and stringers in Alabama who either had, or could acquire, firsthand knowledge of the events and purported encounters.
In its 1964 decision (authored by Justice William J. Brennan, Jr.), the U.S. Supreme Court acknowledged that “there is evidence that The Times published the advertisement without checking its accuracy against the news stories in The Times’ own files.”
It may be supposed that, in good conscience, the Court had to acknowledge some laxity – laxity that, in the Justices’ estimation, did not constitute “reckless disregard” under the Actual Malice standard being announced: “We think the evidence against The Times supports, at most, a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice...”
With respect to the failure of the newspaper’s advertising acceptance department to check the ad copy against the newspaper’s own reporting, the Court provided wiggle room: “... the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement....”
One has to wonder if that might be a bit too much leeway for at least five Justices of the 2014 U. S. Supreme Court – and a bit too much indulgence for a state court jury and trial judge.
Post-Publication Knowledge of Falsehood and a Failure to Retract: Evidence of Actual Malice?
There was uncontroverted evidence that post-publication investigations conducted by two reporters, who The Times relied on for its coverage of Civil Rights activities in Alabama, confirmed Sullivan’s assertions about ad’s misleading assertions and insinuations. Still, The Times refused to publish a retraction as to Sullivan.
The Alabama courts placed great weight on The Times’ failure to retract, even after presented with evidence of the ad’s “falsity.” Might trial courts – and five Justices of the 2014 Supreme Court – equate such intransigence with an “actual intent to harm?”
Principle or Hubris – there are costs.
As to disposing of the case following the Supreme Court’s “no actual malice” ruling, the Alabama lawyers who had been retained by The Times engaged in settlement discussions with the lawyer representing Sullivan and others contesting the same ad: “We sincerely feel that further litigation of these cases is not in the best interests of either party and can serve no useful purpose.”
Eventually, they prevailed upon The Times to pay the out-of-pocket expenses incurred by Sullivan’s lawyer.
How many media organizations can now afford to risk the costs of inattention and intransigence?
Without doubt, the journalism and publishing communities have found the Supreme Court’s Times v. Sullivan disposition quite satisfying.
However, there may well be untruths (and outright lies) that are repeated knowingly, for the express purpose of damaging reputation. Will these be pardonable? Supreme Court Justice Antonin Scalia has already signaled his verdict that such disseminations should not be without cost.