For a politician who abhors the mainstream media, DeSantis sure seems to adore its trappings. His panel discussion took place before a studio audience on a sleek set with a graphic of a spinning globe in the background, overlaid by a banner: “TRUTH.” There was general agreement among the panelists — who included defamation attorney Libby Locke, former Covington (Ky.) Catholic student Nicholas Sandmann and Claremont Institute fellow Carson Holloway — that U.S. news media organizations need a more restrictive legal regime.
“When you’re knowingly putting out false information and, indeed, I’d say these companies are probably the leading purveyors of disinformation in our entire society right now,” said DeSantis, a Harvard Law graduate, “there needs to be an ability for people to defend themselves, not through government regulation or restriction but through being able to seek private right of action.”
Boldface added to highlight the irony of a Republican — whose party has long been committed to limiting the private right of action — extolling the private right of action, essentially a fancy term for people filing lawsuits to enforce their rights.
The roundtable veered quickly into a beatdown of New York Times v. Sullivan, the landmark 1964 Supreme Court decision requiring that public officials (later extended to “public figures”) seeking damages for defamation must prove “actual malice” — that an outlet knowingly published a falsehood or proceeded with reckless disregard for truth. Holloway said that in a “properly functioning democratic culture,” the media should provide “truthful and accurate information, not defamatory smears of public figures.”
Locke, whose firm Clare Locke LLP has brought several prominent defamation cases, including a jury verdict in favor of a University of Virginia dean against Rolling Stone magazine, claimed that in every step of the process, “the thumb is on the scale in favor of the press.” The courts, she lamented, have determined that “limited-purpose public figures” — people who become embroiled in controversies and a “huge swath of the American citizenry,” she said — must meet the Times v. Sullivan requirements, meaning that the media has “complete immunity from liability.”
“Complete immunity”? That is, except for all the media firms that Locke and her firm have successfully sued. Asked how her firm could prosper in such an environment, Locke responded via email, “The simple answer is because we’ve become expert in this area of law and practice unlike any other firm in the country.”
Amid the Sullivan bashing, DeSantis sought to distinguish himself from “run of the mill” people: “Me, they come after me and they do do a lot of slander,” the governor said. “But I fight back. I have a platform to fight back, so it’s a lot easier for me.”
With that, DeSantis endorsed a bedrock principle of … the New York Times v. Sullivan doctrine. The notion that politicians, celebrities and the like have the wherewithal to rebut negative press has deep grounding in case law. In the oft-cited 1974 case Gertz v. Welch, for instance, Justice Lewis F. Powell Jr. wrote, “Public officials and public figures usually enjoy significantly greater access to the channels of effective communication, and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury.” Private individuals, that is, such as Sandmann, who as a high school student sued multiple news outlets over his portrayal during a January 2019 encounter with a Native American activist at the Lincoln Memorial. Sandmann secured settlements with The Post, CNN and NBC News, though his lawsuits against several other media outlets, including the New York Times and ABC News, were dismissed last year.
Despite his perhaps accidental support for a tenet of New York Times v. Sullivan, DeSantis has mulled legislation to undo it. As the Orlando Sentinel’s Skyler Swisher reported last May, a top DeSantis staffer has worked on a bill — not yet introduced — that would:
- Establish that the “failure to validate or corroborate the alleged defamatory statement” is evidence of actual malice.
- Institute a presumption that “statements by anonymous sources are presumed to be false.”
- Narrow the range of people who are deemed public figures for the purpose of defamation actions.
A problem: “Failure to validate or corroborate” a defamatory statement is just a fancy way of describing a big mistake. In New York Times v. Sullivan, the Supreme Court protected media outlets from large jury awards for mere screwups when the aggrieved party was a public official, on the rationale that public discourse would suffer if media outlets feared for their survival every time they published a critical piece. What does this mean? Puff pieces would proliferate in a world ruled by DeSantis.
Presuming that anonymously attributed material is false would effectively require media organizations to affirmatively prove the truth of their reporting in court — a reversal of the current system, under which plaintiffs generally must prove the falsity of allegedly defamatory statements. The effect would be to stifle investigative reporting on public figures of all ideological hues.
Is DeSantis ready to push for these measures in the Florida legislature? He’ll say more soon on a “whole bunch of different issues,” he promised last week. If enacted, the governor’s libel reform ideas might land at the Supreme Court, which last year declined to revisit New York Times v. Sullivan.
But who knows — perhaps it would entertain one of DeSantis’s piecemeal tweaks, which would pose a far greater threat to U.S. media than the empty Trump pledge.