Rethinking Libel for the Twenty-First Century

From the Tennessee Law Review via SSRN (footnotes omitted and paragraph breaks added for readability):

Today, many institutional arrangements reached in the mid-twentieth century are being rethought and renegotiated. One such arrangement involves libel, and the responsibility of publishers for harm they cause via defamation. In his recent concurrence to the denial of certiorari in the case of McKee v. Cosby, Justice Clarence Thomas called for the Supreme Court to revisit the constitutional protections for publishers of libelous material, arguing that the existing arrangement, dating to New York Times Co. v. Sullivan and its progeny, is out of date and unsupported by the Constitution. As even some left-leaning scholars note, he may have a point, and it seems likely that the Supreme Court will revisit the issue of libel in the near future. In this short Essay, I will discuss Thomas’s critique, the broader
problem of fairly adjudicating libel cases in an era of widespread publishing and social media, and the impact of the Sullivan regime over the past half-century. I will then suggest some remedies to the
problems identified.

Under the common law of libel, which was applied throughout the United States with minor variations prior to the Sullivan decision, publishers were liable for damages for publishing material that was false and defamatory (i.e., tending to injure the subject by lowering him or her in the opinion of society or of peers). This was true across the range of speakers and of subjects, whether it was newspapers writing about the president or publications regarding private citizens. Public figures did not have to satisfy any sort of heightened standard for liability, malice was presumed unless some common law privilege or right applied, and both general and special damages were recoverable, plus punitive damages upon a showing of malice. Truth was a defense, but if the publication was false, a plaintiff was entitled to at least nominal damages even if he or she could show no actual injury. At common law, false and defamatory stories about public figures were seen as actually more damaging, because of their targets ‘roles in the community, than libels of private figures.

Protection of reputations was seen as very important. In an era before credit scores and online background checks, reputational capital was an essential part of social and financial relations, especially among the elite. People were thus willing to go to great lengths to preserve reputations, as the prevalence of the custom of dueling around the time of the framing of the U.S. Constitution illustrates—one who was insulted but did not issue a challenge, or who refused a challenge, was likely to face ostracism, resulting in social and financial disaster at the very least.

In fact, one bit of fallout from the famed Hamilton/Burr duel was an effort, initially unsuccessful, to persuade the defamed to seek their remedies in court via libel actions, rather than on the field of honor. By the twentieth century, for better or worse, the libel action had taken the place of pistols at dawn as a way of seeking redress for reputational harm, and the common law of libel managed to coexist with a free press quite handily, and with little perceived conflict.

That all changed with New York Times Co. v. Sullivan, when the Supreme Court decided to subject libel law to an unprecedented degree of First Amendment control. The Court had its reasons for doing so, and they were not bad ones, but the state of current libel law suggests that the changes that have been made far outstrip the justifications for the Sullivan ruling.

The Sullivan lawsuit was an action brought by a government official against an out-of-town newspaper, to be tried in a local court before a sympathetic local jury.

This was not an isolated event. Unhappy with northern news organizations’ coverage of segregation and civil rights marches, southern officials had formulated a plan of asymmetric warfare: while civil rights marchers had the sympathy of powerful national media organizations, those organizations were subject to the jurisdiction of local courts and juries in the south, courts and juries that could be expected to be unsympathetic toward hostile out-of-state media. Sullivan’s was just one of many such lawsuits filed against national news outlets, and the strategy was, until the Sullivan decision, a highly successful one.

The Court recognized this reality. Justice Hugo Black called these libel suits a “technique for harassing and punishing a free press” in his Sullivan concurrence. He explained:   

There is no reason to believe that there are not more such [suits] lurking just around the corner for the Times or any other newspaper which might dare to criticize public officials. In fact, briefs before us show that in Alabama there are now pending eleven libel suits by local and state officials against the Times seeking $5,600,000, and five such suits against the Columbia Broadcasting System seeking $1,700,000. Moreover, this technique for harassing and punishing a free press . . . can be used in other fields where public feelings may make local as well as out-of-state newspapers easy prey for libel verdict seekers.

By 1964, when the Sullivan case came before the Court, “government officials had filed at least $300 million in libel actions against newspapers, news magazines, television networks, and civil rights leaders.” These lawsuits were intended to chill or banish negative coverage. As Anthony Lewis wrote, the libel campaign was a “state political weapon to intimidate the press. The aim was to discourage not false but true accounts of life under a system of white supremacy . . . . It was to scare the national press—newspapers, magazines, the television networks—off the civil rights story.”

A private communication between Birmingham Commissioner J.T. Waggoner, a plaintiff in another libel suit, and his attorney James A. Simpson “casts some doubt on whether Waggoner felt defamed personally. Simpson told Waggoner the suit would help deter newspapers such as the Times from committing ‘ruthless attacks on this region and its people. I am sure this is the primary motive which has prompted you to embark on this troublesome litigation.’”

And, until the Sullivan opinion was handed down, this approach worked. As Harrison Salisbury wrote, news media outlets had to “think twice about reporting the facts, harsh and raw as they often were.” And the Montgomery Advertiser called the libel suits a “formidable club to swing at out-of-state press,” and observed that “[t]he recent checkmating of the Times in Alabama will impose a restraint on other publications.” Lawyers for the Times went as far as encouraging reporters to avoid Alabama, to avoid generating more libel suits or risking being served with a subpoena. Stories were even killed for fear of these suits:

On the advice of their lawyers, Times editors killed a Sunday story Sitton wrote in late 1962 about a change in the Birmingham city government that might “depose Commissioner Eugene (Bull) Connor, whom negroes regard as one of the South’s toughest police bosses.” Times lawyer Tom Daly advised editors that the story “might indicate malice” in the pending Sullivan suit before the Supreme Court. It did indeed appear that “public officials had achieved their objective, [and] Jim Crow could return to its good old days, operating with virtually no scrutiny.”

Against this background of a concerted effort to encumber or impair First Amendment rights through strategic litigation—aimed at affecting the behavior of the news industry as a whole, rather than compensating a discrete injury—the Supreme Court created what Andrew McClurg denotes as a “right to be negligent,” by limiting libel claims against public officials and public figures to cases where the plaintiff could show “actual malice.” The Court concluded that otherwise, the tort system might be used by powerful interests to undermine the First Amendment, an important part of the Bill of Rights.

. . . .

Turning this around was not easy for Justice William J. Brennan, writes Lewis, who reviewed the multiple draft opinions and notes of the justices’ clerks:

Justice Brennan had great difficulty marshaling a majority and holding it. He wrote eight different drafts
of the opinion. Until the last moment there was a real possibility, even a probability, that it would not
command a majority. Not until the evening of March 8, the night before Justice Brennan announced the
decision, did Justice Harlan agree to join him without reservations.

The eventual formula which, according to Lewis, Harlan joined as much out of a desire to maintain the Court’s institutional authority as because he was intellectually persuaded, is the one we have all come
to know: to recover for libel, a public official must show actual malice, that is, publication of information that the publisher knows to be false, or which they published with reckless disregard as to its truth or falsity. One may suggest—as Justice Thomas’s recent remarks did—that this departure from prior law was motivated more by political concerns than by constitutional doctrine or history. As written, the Sullivan decision was a comparatively narrow response to an entirely novel litigation campaign. But subsequent decisions suggested that the Court was more concerned with protecting the institutional press in general than with merely reining in the excesses of a cabal of segregationist politicians.

The first evidence of this concern involves the replacement of the comparatively narrow and limited “public official” category with the much larger and less well-defined category of “public figure.” And in very short order, the Court left the “public official” limitation behind.

. . . .

The issue is no longer public officials’ collusion against a free press; instead, it is the supremacy of press freedom over other issues, such as privacy. The traditional role of libel law, in fact, was precisely to demonstrate that in a civilized society there are limits to the “exposure of the self.”

. . . .

What is a public figure? As the newspaper attorney in the motion picture Absence of Malice observes, “If I knew that I should be a judge. They never tell us until it’s too late,” adding, “I must admit I’d be more comfortable if he were a movie star or a football coach—football coaches are very safe.” Well, yes. It also seems to be about thrusting.

. . . .

Sullivan was a response to government officials’ use of friendly local courts to harm out-of-state publishers, in the name of promoting free speech. Gertz, however, essentially approved a sort of “tax” on free speech—if you “thrust” yourself into a public debate (a phrasing that suggests that there is something vaguely inappropriate about your involvement somehow), then you pay a price: People may now libel you with much less fear of consequences. Rather than protection for free speech, the Gertz formulation looks more like an admonition to the peasantry to know its place. The “thrust” language from Gertz was echoed in Time, Inc. v. Firestone, where Justice William Rehnquist held that people do not count as public figures unless they have “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Nice reputation you’ve got there. Shame if something were to happen to it.

. . . .

“If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not ‘voluntarily’ choose to become involved.” As Donald Magnetti comments, “In Rosenbloom, the seed of New York Times had grown into a veritable protective thicket surrounding the media. Although the phrase ‘matter of public interest’ was left undefined, what purpose is there for the media to publish something that is of no interest to the public?”

The Court found, however, that private figures retained a right to actual damages without showing “actual malice,” and to punitive damages if such a showing of actual malice could be made. Mr. Gertz, the Court found, was a private figure, as he “did not thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome.”

. . . .

The upshot is that most likely libel plaintiffs will be public figures who must show actual malice, and in order to show actual malice they must be able to demonstrate that the publisher entertained actual
serious doubts, something which, as a matter of proof, will often turn out to be difficult. And even private figures must show actual malice to collect punitive damages. When a University of Virginia Dean sued Rolling Stone over a fraudulent report of a gang rape at a party, she was able to demonstrate actual subjective doubts because an independent investigation by the Columbia Journalism Review,
which the Rolling Stone’s lawyers must surely have regretted, made such doubts plain. Few future plaintiffs will be so lucky.

. . . .

Thomas is an “originalist”; he believes that interpretation of the Constitution should be settled by reference to the “original public meaning” of its terms. Thomas offers considerable evidence that at the time of ratification, those who wrote and ratified the Bill of Rights were comfortable with libel actions—and that they did not mean to impose anything like the “actual malice” standard. A defamed individual (including a public figure) needed only to prove that a written publication was false and that it subjected him to hatred, contempt or ridicule. And for 170 years, the Supreme Court never held that the First Amendment forbids the states from protecting people from libel.

Thomas concludes that New York Times v. Sullivan, and the many subsequent decisions implementing it, were “policy-driven decisions masquerading as constitutional law.”

. . . .

Sunstein adds: “There are strong objections to originalism, of course. But whatever your theory of constitutional interpretation, it is hardly obvious that the First Amendment forbids rape victims from seeking some kind of redress from people who defame them.” But that is in fact the logic of existing caselaw: By accusing someone— especially someone famous—of rape, one automatically becomes a public figure, and by becoming a public figure, one becomes virtually ineligible for protection against defamation. Worse yet, thanks to Google, such defamation becomes near-permanent. Where once a defamatory headline on a Tuesday was wrapped around fish by Thursday, now it remains, evergreen, to be recalled whenever the defamed’s name is searched.

One solution, as advocated by Justice Thomas, would be to simply overturn New York Times Co. v. Sullivan. As both Thomas and Sunstein point out, the structure of public versus private figures, the actual malice test, etc., are not readily derivable from the First and Fourteenth Amendments. Indeed, it is easy to read Sullivan and its progeny, and the history of the case as recounted by Anthony Lewis, as evidence that the Court was moved more by a class-solidarity with members of the chattering classes than by constitutional doctrine.

Overturning Sullivan would effectively return us to the pre-1964 era of libel law, in which public officials and private figures were treated alike and “actual malice” was not required. This prospect produced considerable agitation in some quarters when Thomas wrote his concurrence: Thomas was accused of wanting to “crush the free press,” or of impeding the “public’s right to know,” or even of declaring war on “the very idea of a free press.”

But these criticisms are basically nonsense. To argue that overturning the Sullivan opinion would end the free press in America is to argue that the press in America, prior to the Sullivan opinion, was unfree, which seems rather extreme.

The Sullivan opinion was a response to a particular set of facts, which had not obtained in the past and which are unlikely to obtain in the future. Indeed, from the harshest of legal-realist standpoints one could justify overturning Sullivan today on that basis alone.

Link to the rest at SSRN

PG says if you have made it through this post, you might do well in law school. He hopes that his excerpt from a longer OP is understandable to someone who has never encountered a law review article before.

PG thinks this topic is relevant to authors because, if self-published, they are subject to libel laws just like the New York Times is.

Further, for self-publishers who publish via Amazon, the following excerpt from KDP’s Terms and Conditions applies:

5.4.8 Offsets, etc. We can withhold Royalties and offset them against future payments as indicated below. Our exercise of these rights does not limit other rights we may have to withhold or offset Royalties or exercise other remedies.
• If we pay you a Royalty on a sale and later issue a refund, return, or credit for that sale, we may offset the amount of the Royalty previously paid for the sale against future Royalties, or require you to remit that amount to us.
• If a third party asserts that you did not have all rights required to make one of your Books available through the Program, we may hold all Royalties due to you until we reasonably determine the validity of the third party claim. If we determine that you did not have all of those rights or that you have otherwise breached your representations and warranties or our Content Guidelines with regard to a Book, we will not owe you Royalties for that Book and we may offset any of those Royalties that were previously paid against future Royalties, or require you to remit them to us.
• Upon termination of this Agreement, we may withhold all Royalties due for a period of three months from the date they would otherwise be payable in order to ensure our ability to off-set any refunds or other offsets we are entitled to take against the Royalties.
• If we terminate this Agreement because you have breached your representations and warranties or our Content Guidelines, you forfeit all Royalties not yet paid to you. If after we have terminated your account you open a new account without our express permission, we will not owe you any Royalties through the new account.
• If we determine in our sole discretion that deceptive, fraudulent, or illegal activity has occurred with respect to your Books or your Program account, then we may permanently withhold payments to you, and we may offset any payments previously paid against future payments or require you to remit them to us. We will use these funds to offset the costs of Amazon’s enforcement efforts and/or to compensate third parties harmed by deceptive, fraudulent, or illegal conduct.

And, from KDP’s Content Guidelines:

Illegal or infringing content
We take violations of laws and proprietary rights very seriously. It is the responsibility of authors, publishers, and selling partners to ensure their content doesn’t violate laws or copyright, trademark, privacy, publicity, or other rights. We will not accept content under copyright that is freely available on the web unless it’s provided by the owner of the copyright. In addition, we do not allow companion books based on copyrighted works (e.g., summaries, study guides, etc.) to be published outside the U.S. without written permission from the copyright holder.

It is relevant to traditionally-published authors because their publishers’ form contracts always include a representation (unless the publisher doesn’t know what it’s doing) that the author haven’t included anything libelous in the manuscript they have submitted to their publisher. Typically, such a clause is placed toward the end of the contract where many authors never tread.

While publishers may have insurance against libel claims, if someone sues them because of something the author included in a book the author wrote, the publisher will likely look to the author for reimbursement of its large insurance deductible and any uninsured expenses caused by the author’s breach of the publishing contract .

While the publisher may or may not choose to sue the author to recoup its damages, the author can certainly give up hope of receiving any further royalty payments from the libelous book that cost the publisher so much money. Depending on the contract language, the publisher may also be able to recoup its litigation expenses from royalties generated by any other non-libelous books which they have published for that author.

8 thoughts on “Rethinking Libel for the Twenty-First Century”

  1. I should add that there’s another gotcha lurking in commercial publishing contracts regarding the author’s liability for libel: The clause wasn’t written by the publisher and with startlingly rare exceptions cannot be changed. It was, instead, written by the publisher’s media-perils insurer (often for what is called an “errors-and-omissions” or “E&O” policy that is limited to low-level negligence), then handed to the publisher; the publisher was instructed that any publishing agreement that fails to include that clause verbatim will be treated by the insurer as an intentional act of the publisher outside the scope of the policy — no coverage, no provision of defense.

    To describe a couple of problems that have arisen since 2010,† with the serial numbers filed off:

    • Publishers reassure authors that the New York choice of law clause embedded elsewhere in the contract means that New York law applies to whether the author’s work was libellous. When there’s an actual dispute, however, the insurer has more than once said “Nope. And we’re not tendering a defense because you’re being sued in London. Get your own lawyer, and if you lose we’re not covering a judgment even though it’s not consistent with US law.” However, the publisher (as directed by the insurer) refuses to redefine “defamatory” to be “defamatory under the laws of the United States.”

    • California-based authors are routinely denied the opportunity to assert Cal. Code Civ. Proc. § 425.16 (the anti-SLAPP provision) if the insurer is directing the defense. Frequently, insurance defense counsel doesn’t even put that option on the table for authors… because, unless the lawsuit was filed in California, the publisher — the primary insured — can’t benefit. And similarly for every other state with similar protections. Since a § 425.16 motion must be filed quite soon after the party asserting the motion has been joined as a defendant, This Is a Problem.

    • Most of these clauses were drafted by either Senior Partners at one of the two major insurance companies that (once one follows the chains) directly or indirectly provide E&O policies who haven’t themselves done any substantial research on “defamation law” or “communications technology” this century, or veryveryvery junior attorneys who would have difficulty spelling “conflicts of law” except that there was one multiple-choice question on the bar exam touching on it. That’s the nice way to put it; some time at a conference over a tasty beverage (and plenty of other plausible deniability) I’ll tell you my real opinion after I put the serial numbers back on.

    Compare Pub L. No. 111-223 (2010) with, e.g., Ehrenfeld v. Mahfouz, 518 F.3d 102 (2d Cir. 2008) and related proceedings.

    • Without any relevant legal background but knowing a bit about how insurers & Fortune 500 contracts tend to push around small business contractors, I can well believe every word.

      Glad I’m not writing in any “real-world” genre.

  2. As a layman and a foreigner I’ve always found these references to “malice” confusing and for a long time assumed that “malice” required malicious behaviour, which unless someone was particularly foolishly, was going to be almost impossible to prove. In fact it sounded as if there was a perfect get out: “Yes we printed all those lies but no malice was involved, it just sold a lot more papers and made us lots of money.”

    Clearly this is not the case, though for public figures I guess it’s not much different as there is just the need to hide any doubts about the truth of the statement and the careful will ensure that nothing appears in writing. I presume that the other big difference from the old English common law is that the plaintiff has to prove the words complained of are false (as distinct from common law requiring the defendant to prove them to be true)?

    • Part of the confusion here is that “malice” is shorthand for “actual malice” — and by shorthanding, it’s hiding that this is a technical term. That descends from English jurisprudence, but only indirectly, and further filtered through the 1850s divergence of US defamation law from England’s.

      Roughly, “malice” in its nontechnical sense relates to “intentional ill will”; compare to the old expression of “premeditated murder,” that of “malice aforethought.” In the technical sense of “actual malice,” though, it is only an inference about willfulness, but instead directly means “did not take the steps and acts necessary to ensure that conversation regarding a Gentleman of Means had a reliable basis that would be persuasive to other members of Society unless directly refuted,” and indirectly implies “the malice and ill-will here is that the speaker at best just didn’t care, and that’s not Socially Acceptable.” Hopefully, the loaded terms in there will make clear that libel law is inextricably intertwined with social standing, and in particular with social standing among our betters (just ask them — whomever they are — they’re better than us, and certainly better than you).

      This also runs into another technical term that I find endlessly amusing. In defamation law — stretching back to the time of Chaucer — the “publisher” is “the person or entity that makes a questioned statement to a person who is not the subject of the statement.” That’s because a direct insult is not defamation; defamation requires a harm to reputation among third parties, meaning a “publication” to them. And that’s where the term “publishing industry” actually comes from — defamation law filtered through Star Chamber procedings undertaken through the Licensing Act of 1566. I highly advise rereading the OP (or, at least, PG’s extracts from it) recognizing that every use of “publisher” has at least two meanings…

      • Thanks for this explanation. The distinction between “malice aforethought” and “malice” as used in US defamation actions is very helpful.

  3. Here are a couple of legal definitions of malice:

    From the Legal Information Institute (Cornell Law School):
    Malice: In criminal law, indicates the intention, without justification or excuse, to commit an act that is unlawful.

    From the Law.com Legal Dictionary:
    Malice
    n. a conscious, intentional wrongdoing either of a civil wrong like libel (false written statement about another) or a criminal act like assault or murder, with the intention of doing harm to the victim. This intention includes ill-will, hatred or total disregard for the other’s well-being. Often the mean nature of the act itself implies malice, without the party saying “I did it because I was mad at him, and I hated him,” which would be express malice. Malice is an element in first degree murder. In a lawsuit for defamation (libel and slander) the existence of malice may increase the judgment to include general damages. Proof of malice is absolutely necessary for a “public figure” to win a lawsuit for defamation.
    See also: defamation libel malice aforethought malicious prosecution murder public figure slander

    • Now I’m confused again. With regard to libel/defamation, both the SSRN article you quoted from and CEP’s comments seem to imply that malice (in the normal non legal definition, something like “desire to cause pain, injury, or distress “) is not necessary, but instead a special legal version that requires a lack of care as to the truth of a statement or the deliberate suppression of doubts as to its truth. However, the Law.com Legal Dictionary excerpt does not seem to make this distinction.

      • Remember, Mike, the actual term at issue is “actual malice,” which although it’s two words is a single term not being some “additive” form of the definitions of the two words. Legal dictionaries in general do a very poor job of making this clear, and unfortunately the one at law.com is almost proud of it. (If one can say that an online compendium is “proud.”)

        So looking up “malice” in a dictionary will not give you insight into “actual malice, often shorthanded in practice as just ‘malice.'” In many circumstances mere recklessness can suffice as “actual malice,” which doesn’t come anywhere near any dictionary definition of “malice” (and is indeed outside the scope of the OED’s definition). Consider, for example, a newspaper that runs a piece asserting, as matters of fact, that a particular businessman in the community is both a commie pinkie apple-pie-hating drug addict and a former draft-dodger. (Hey, it hasn’t been that long since the 70s! OK, maybe it has and I’ve just got a long memory; at least I filed off the serial numbers.) The newspaper based its story on rumors around town from multiple sources, all of whom happened to be competitors of this businessman — and it was objectively verifiable that he loved apple pie and was an immigrant from Canada who was never subject to being drafted. But the newspaper did no further research.† That’s probably enough to satisfy the “actual malice” standard, because it’s completely reckless to not confirm the “draft dodger” accusation. There didn’t need to be even a hint of ill will or even intent… except, perhaps, the “intent” not to waste any time or money verifying the factual basis of rumors.

        † One of the many reasons that newspaper foundered a few years later.

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