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When the News Isn’t Fit to Print

Some conservatives want to rein in journalists’ protections established long ago by the Supreme Court. That would be a blow to the news coverage that aims to keep state and local governments accountable.

Chained newspapers
In February, Florida Gov. Ron DeSantis held a roundtable discussion on the First Amendment. He asked: Had the courts set much too high a bar for challenging what the news media report? The country was suffering a serious problem of “media defamation,” he argued, with public figures too often the target of media attacks against which they couldn’t defend themselves.

It was time, he said, to revisit the U.S. Supreme Court’s landmark New York Times v. Sullivan decision, which has provided powerful protection to the media. DeSantis and other conservatives have rallied to press the courts to reconsider the case and make it easier for public officials to win big financial awards against journalists.

Far more is at stake than the fortunes of the Times, the cable networks or other well-heeled national news organizations. An end to the protections afforded by Times v. Sullivan could radically upend critical coverage of politics, policy and the workings of government among the state and local media where there’s already been a massive retreat in recent years.

Here’s the backstory to the current debate: In 1960, the Times published a full-page ad by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. The ad complained about “Southern violators of the Constitution” and “truckloads of police armed with shotguns and tear gas” who had “ringed” the Montgomery, Ala., campus of Alabama State College. L.B. Sullivan, the Montgomery police commissioner, wasn’t named in the ad, but he alleged that information in it was false and impugned the integrity of his police department.

Sullivan sued the Times for printing the ad because, he said, it contained untruths. Among other things, he said that the police had not “ringed” the campus, and that the protesters sang “The Star-Spangled Banner,” not “My Country ‘Tis of Thee,” as the ad claimed. The Times had nothing to do with writing the ad, but Sullivan claimed that it should have known that the ad contained falsehoods. He won a $500,000 judgment against the paper.

The Times appealed, and in 1964 the U.S. Supreme Court ruled in its favor. Writing for the majority, Justice William Brennan said it was crucial that there be “uninhibited, robust and wide-open” public debate. The media were protected, he asserted, even if what they distributed might inadvertently be false, unless they acted with “actual malice” — that is, with “reckless disregard” of truth or falsity.

In the years since, Sullivan has defined the foundation of the First Amendment’s freedom of the press. But DeSantis and other conservatives have objected to this protection. At his February roundtable, participants proposed a range of ways to rein in Sullivan’s protections, including requiring losing defendants to pay the legal fees of those who sue to limiting the types of defendants who could rely on Sullivan.

Needed: A Test Case

For conservatives convinced that the media has a liberal bias, however, the ultimate goal is to overturn Sullivan altogether, and they have been debating how best to make that happen. In a notable 2022 dissent from the Supreme Court’s decision not to hear a case involving a Christian organization that had been labeled as a “hate group,” Justice Clarence Thomas wrote that he wanted to have the court take up the “actual malice” standard. The precedent, he complained, allowed the media and interest groups “to cast false aspersions on public figures with near impunity.” Justice Neil Gorsuch has also signaled that he wanted to revisit Sullivan.

And that’s where DeSantis and his roundtable come in. What they need is a test case, enough money to stage the appeal, support from at least four justices on the Supreme Court to hear the case — and five to overturn Sullivan.

One strategy is for state legislatures to pass legislation peeling back some of the Sullivan standards, and they may get what they want from bills now before the Florida Legislature. Among other provisions, for example, one of the bills would shield those who have been accused — truthfully — of anti-LGBTQ discrimination if they can claim their actions were the result of “constitutionally protected religious expression or beliefs” or “scientific beliefs.” Another Florida bill would allow a suit for damages based on “the publication of an altered or unaltered photograph, video or audio recording” that someone deems defamatory.

Under current standards, publishing something that is true — an unaltered photo or an accurate charge of public corruption — is an absolute defense against a defamation suit. Moreover, the “actual malice” standard creates a very high bar for demonstrating defamation and damages.

Outgunned Local Media

Conservatives interested in challenging Sullivan’s standards are very well financed, and struggling local media could quickly find themselves financially and legally outgunned in a case. If the thresholds are changed — if, for example, printing accurate stories and photos is no longer a defense — it wouldn’t take long for these media simply to stop reporting some stories rather than take a chance that a court judgment could put them out of business.

And local media are already in big trouble. Last year, Axios’ Sara Fischer reported, two newspapers were closing every week. In local newsrooms, the number of editorial staff has declined by 58 percent since 2006. “The local newspaper sector is in a state of terminal decline,” Fischer concluded. In state capitols, while the number of reporters has increased by 11 percent since 2014 the number of full-time reporters has shrunk, according to the Pew Research Center.

Put together this brew, and the implications are clear: With local newspapers in decline, coverage of state politics more of a part-time business, and conservatives increasingly willing to trim the protections afforded reporters and to seek large punitive judgments, the incentives for effective coverage of state and local governments will surely shrivel.

As University of Buffalo law professor Samantha Barbas put it, changes in the Sullivan standard “would undermine the ability of the press to report on public figures and give the public the news it needs about important issues.” That, in turn, would make it “substantially riskier for journalists to report on controversial subjects and individuals.” And a 2018 study found that without journalists to keep public officials accountable, the costs of local government increase.

Conservatives have long staged national attacks on what they view as the liberal bias of the media. The front lines of this battle, however, are at the state and local level, where the economics of risky reporting could simply lead to less news coverage. That would pose a serious problem for America’s traditional reliance on freedom of the press and deal a serious blow to a crucial mechanism for ensuring the accountability of public officials.

Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.
Donald F. Kettl is professor emeritus and former dean of the University of Maryland School of Public Policy. He is the co-author with William D. Eggers of Bridgebuilders: How Government Can Transcend Boundaries to Solve Big Problems.
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