Claremont conservatives are coming for (non-conservative) press freedom
Some animals are more equal than others.
At the Claremont Institute for the American Way of Life1, Carson Holloway thinks it is time to get rid of some of those pesky press freedoms. More precisely, he thinks the Supreme Court should reverse New York Times v. Sullivan, a precedent that allows the public and media some significant leeway to discuss and report on public figures.
Under that precedent, Holloway says,
Public figures could sue successfully for libel only if they could demonstrate that their defamers had acted with “actual malice”—that is, that they had knowingly published a falsehood or had acted with reckless disregard for the truth. Unsurprisingly, this standard proved almost impossible to meet in practice2, with the result that the press has become almost completely free to defame prominent Americans with legal impunity.
The consequences of New York Times v. Sullivan have been baleful for our nation. The ruling has undermined self-government by giving the press immense power over the public mind. Today, a partisan press routinely attempts to shape political outcomes by using defamation to make some people and some positions odious to the public. The more successful a leader on the Right becomes, the more likely that person is to be labeled a racist or a Nazi. Critics of America’s foreign policy establishment are frequently accused—without evidence—of being “puppets” of foreign leaders or in the pay of foreign governments. These smears—retailed so freely today—would have required much more caution in pre-1964 America, when they might well have landed their purveyors in court, with a real chance of having to pay damages.
Notice here that Holloway’s essay3 is entirely concerned with defending the right from the left’s opinions and insults. And notice, too, that his claim that a notorious figure on the right, Alex Jones, was ordered by a jury to pay nearly $1 billion for defaming the families of Sandy Hook massacre victims whom he defamed by falsely, outrageously claiming they were “crisis actors” who hadn’t actually lost their children to a horrific mass shooting. Apparently the defamation standard isn’t totally impossible to meet4.
Charlie Kirk, the Turning Point USA founder and a 2021 Lincoln Fellow of the Claremont Institute, was very angry about this:
Now: Holloway and Kirk are not the same person. But you don’t have to look to far to conclude that the Trumpist right wants unfettered speech for itself while making it less available to folks who aren’t on the team.
A few points here:
* Reversing NYT v. Sullivan would be a bad deal for freedom of the press — and freedom of expression — in the United States. Journalists don’t have any First Amendment rights that the public doesn’t. Which means that while the Times and the Washington Post and CNN might find themselves much more cautious about publishing provocative work, it would also mean that somebody on Twitter who calls Trump a Nazi or suggests that that Tucker Carlson is in the pay of the Russians — I’m using Holloway’s example here — would also be subject to a lawsuit.
Are you ready to face a civil trial for that angry tweet or Facebook post? I’m not saying it would definitely happen. But it’s not unimaginable, either.
As Washington Monthly noted last year: “The elimination of actual malice would be the most serious attack on free speech in generations, an action that would greatly chill public discourse and could reduce reporting on public affairs to little more than secretarial duty.”5
* Conservatives wouldn’t necessarily do well under a lower standard for defamation, assuming it was applied equally and fairly across the ideological spectrum. As David French noted following the Alex Jones outcry on the right:
Dominion Voting Systems and Smartmatic have multiple defamation suits against Fox News, OANN, Newsmax, MyPillow’s Mike Lindell, lawyers Rudy Giuliani and Sidney Powell, and news anchors Lou Dobbs and Maria Bartiromo. Two Georgia election workers, Ruby Freeman and Wandrea Moss, have sued a popular far-right website called Gateway Pundit for a series of false claims that they committed voter fraud in Fulton County Georgia.
The Jones verdict also follows on the heels of Fox News’s decision to pay “millions of dollars” after the network broadcast false claims that the murdered Democratic National Committee staffer Seth Rich had a role in hacking and leaking DNC emails during the 2016 campaign.
These cases all share characteristics with the Jones case. Far-right figures aggressively pushed blatant, easily disproved falsehoods and inflicted a catastrophic degree of misery on their targets.
The current status of defamation law might be the only thing keeping Fox News and some notorious right-wing figures afloat, in other words.
Indeed, AmGreatness — a Trumpist outfit stocked with Claremont alumni — has repeatedly suggested that maybe the free press doesn’t deserve to be quite so free if it’s going to keep smearing Trump. But in 2019, it also ran this article: “Overhauling Libel Laws Will Only Hurt Conservatives.”
* That said, I don’t think that conservatives are gunning for rules that apply to everybody equally these days. As Jonathan Chait noted in his recent visit to a National Conservative meetup, “Their methods and goals are ones that if embraced by their opponents would unquestionably (and correctly) be described as authoritarian or worse. Nobody expressed any fear that a right-wing state dedicated to endless political warfare might violate anybody’s rights.” If NYT vs. Sullivan were to be overturned, the guess here is that conservatives would shape the outcome to favor conservative ends and punish liberal and progressive enemies, perceived and otherwise.
That AmGreatness pro-Sullivan article? One part of its reasoning is this: “The legal system is not neutral. It favors the Left and will not solve America’s media problems.” But that was written in 2019, before the right captured its supermajority on the Supreme Court. The landscape looks a little different now.
So: There is danger present. Justices Clarence Thomas and Neil Gorsuch have already indicated they’re not fans of the Sullivan precedent. They only need to convince three of their friends to overthrow the freedom of the press. I wouldn’t want to bet against their success.
Emphasis added.
One other Carson Holloway essay on free speech: I’m a Conservative Professor. Why My Students Should Never Be Shut Down for Speaking Freely. Draw your own conclusions.
In fairness, it was much easier to meet because Jones refused to cooperate with the discovery process for a civil trial, and so a default judgment was found against him. But it’s not like we have to look that far for successful defamation suits: Remember when Hulk Hogan, backed by Peter Thiel, basically shut down Gawker? It’s difficult to establish actual malice against public figures, but it’s not impossible.
Holloway paints a much rosier picture: “If the media attempt to make money and to influence politics by retailing false and defamatory materials about American citizens, they will have to contemplate the very real possibility of successful libel lawsuits. Reporters and editors will also have to consider the possibility that they might lose their jobs by getting their employer sued, along with the danger of the reputational damage to the media institution that will accompany a libel suit. And the CEOs of big media corporations will have to consider the financial harm that comes from paying out damages to litigants who successfully sue for libel. None of this would do anything to “chill” the robust exchange of information and ideas. To avoid these dangers, media institutions would need to do no more than make sure of the truth of what they publish, especially when the matter damages a person’s reputation.” I guess I’m skeptical it’s that simple.
"These smears—retailed so freely today—would have required much more caution in pre-1964 America"
I guess he's never heard of the right honorable senator Joseph McCarthy.
The only freedom of speech the Trump party supports is their own.