Free speech advocates have long believed that suing a news organization threatens free speech. Democracy needs a press to be free to report, without fear or favor, the facts as it sees them.
But two recent legal actions against news organizations indicate that the First Amendment provides sufficient free speech protection, even when punishing lawsuits are filed against the press.
Falsehoods have flooded public discourse in recent years through outlets including talk radio, cable TV channels and social media such as Facebook, YouTube, Twitter, Reddit and Instagram. The proliferation of these falsehoods has seemingly normalized the practice of spreading lies.
Earlier this year Smartmatic, a little-known voter technology firm, sued cable channel Fox News for US$2.7 billion alleging defamation for baseless reports of fraud in the November 2020 election. One day later Fox News canceled Lou Dobbs Tonight, a program hosted by a staunch supporter of Donald Trump and repeater of his false assertions of voter fraud. Fox even broadcast fact-checking reports debunking its own anchors false claims about electoral fraud.
Smartmatic also threatened to sue another news outlet, Newsmax, for large sums unless it retracted defamatory statements that claimed Smartmatic software was used to change votes cast in the presidential election. Newsmax backpedaled by publishing the retraction that No evidence has been offered that Smartmatic used software or reprogrammed software that manipulated votes in the 2020 election.
So, does the fear of losing money in a lawsuit dictate what news organizations will report and what they wont?
No. As a former journalist and now scholar and practitioner of media law, I believe there are enough safeguards built into First Amendment jurisprudence to shut down liars and still protect robust debate of opposing viewpoints in America.
In a landmark First Amendment case almost 60 years ago, New York Times v. Sullivan, the U.S. Supreme Court decided that in the rush to gather and disseminate news, it is understandable that a news reporter may miss an important fact or interpret something wrong. Because preserving a free and robust exchange of ideas is vital to democracy, the court said it is worth the risk that some falsehoods may mistakenly be printed, and the press shouldnt be punished for it.
Thus, when a well-known person or company brings a defamation suit against a news organization, they must have a very strong case or they will lose. Defamation law heavily favors a media defendant.
To win, it is not enough to prove the news outlet published falsehoods, even if the plaintiff suffered significant damage to their reputation. Plaintiffs must prove the news organization published information even with the knowledge that [a statement made] was false or with reckless disregard for the truth.
Realistically, it means it is not worth suing a broadcaster or newspaper for defamation unless the lie is egregious, the damage to reputation is severe and the evidence of the news organizations intention or recklessness in publishing the story is practically undeniable.
That is a steep hill for plaintiffs to climb.
But courts draw the line when a news organization publishes untruths that could have been adequately checked for accuracy, but reporters or editors carelessly or knowingly shirked their duty to do so.
That is the linchpin of Smartmatics claim against Fox News. The lawsuit states Trump lawyers Rudolph Giuliani and Sidney Powell made the case for election fraud for weeks as frequent guests on Fox programs, but rather than fact-check those false claims, the lawsuit alleges, Fox joined the conspiracy to defame and disparage Smartmatic and its election technology and software.
When Giuliani and Powell were asked to produce actual evidence of voting fraud involving the company, none was forthcoming, but Fox published their claims anyway. And Smartmatic sent the network a letter before the lawsuit was filed asking it to issue a full and complete retraction of all false and defamatory statements and reports. In response, the network aired several times an interview with a voting technology expert who debunked the claims of fraud, but it is not clear whether a two-and-a-half-minute interview was enough to undo months of broadcasting inflammatory and baseless claims of election fraud.
Several legal experts believe Smartmatics lawsuit could be successful.
Free speech advocates may complain that disgruntled plaintiffs sometimes sue not because information reported about them is untrue, but rather to silence a news outlet that they know cannot afford to defend the lawsuit.
[Over 100,000 readers rely on The Conversations newsletter to understand the world. Sign up today.]
But there is a legal remedy for this, too. The District of Columbia and 30 states have laws, called anti-SLAPP statutes SLAPP stands for Strategic Lawsuit Against Public Participation that allow a defendant to get a case dismissed early in litigation and get paid attorneys fees and costs if the published speech is true and a plaintiff is suing just to silence the publisher.
It is an effective tool journalism organizations can use to defend themselves against bullying plaintiffs. Depending on the state, the effectiveness of anti-SLAPP statutes and who is allowed to assert them can vary.
Suing over illegal speech is a slow and expensive process. Nevertheless, defamation suits lodged against Fox News and threatened against Newsmax for false reports of fraud in the November 2020 election managed to quickly curtail misinformation spread by news networks, where years of excoriating criticism by public pressure campaigns and advertising boycotts did not.
It is enough to prompt First Amendment advocates to rethink whether defamation lawsuits may be a valuable tool to protect rather than a scourge that hinders the dissemination of free speech and truth in American discourse.
Read more:
Why lawsuits against the media may not hurt freedom of the press - The Conversation US
- Free Download MP3 Album Sublime - Sublime To Freedom [Last Updated On: October 16th, 2010] [Originally Added On: October 16th, 2010]
- Braveheart In Defiance Of The English Tyranny! BRAVO [Last Updated On: April 2nd, 2011] [Originally Added On: April 2nd, 2011]
- rage against the machine - freedom [Last Updated On: April 3rd, 2011] [Originally Added On: April 3rd, 2011]
- Richie Havens, Freedom, (Woodstock) [Last Updated On: April 8th, 2011] [Originally Added On: April 8th, 2011]
- Dodge Challenger Freedom Commercial [Last Updated On: May 20th, 2011] [Originally Added On: May 20th, 2011]
- Twelve Girls Band - Freedom [Last Updated On: May 20th, 2011] [Originally Added On: May 20th, 2011]
- Akon "Freedom" 2009 [Last Updated On: May 22nd, 2011] [Originally Added On: May 22nd, 2011]
- Paul McCartney - Freedom (Nobel Peace Prize '2001) [Last Updated On: May 23rd, 2011] [Originally Added On: May 23rd, 2011]
- Jimi Hendrix- Freedom [Last Updated On: June 1st, 2011] [Originally Added On: June 1st, 2011]
- Braveheart freedom speech -- Matt [Last Updated On: June 3rd, 2011] [Originally Added On: June 3rd, 2011]
- freedom 101 [Last Updated On: June 7th, 2011] [Originally Added On: June 7th, 2011]
- Dj Andi and Stella-Freedom(Summer Hit)+lyrics [Last Updated On: June 17th, 2011] [Originally Added On: June 17th, 2011]
- Braveheart Freedom Short [Last Updated On: June 18th, 2011] [Originally Added On: June 18th, 2011]
- LOVE PSYCHEDELICO - Freedom, featuring Christopher Yates [Last Updated On: June 24th, 2011] [Originally Added On: June 24th, 2011]
- Alice Cooper - Freedom [Last Updated On: June 30th, 2011] [Originally Added On: June 30th, 2011]
- "Freedom Rallies" Honored in Williamston — North Carolina Public Radio WUNC [Last Updated On: July 11th, 2011] [Originally Added On: July 11th, 2011]
- Looking For Freedom - David Hasselhoff [Last Updated On: July 14th, 2011] [Originally Added On: July 14th, 2011]
- Braveheart - FREEDOM scene [Last Updated On: July 22nd, 2011] [Originally Added On: July 22nd, 2011]
- Amanda Knox: 'Another Day Closer to Freedom' [Last Updated On: July 25th, 2011] [Originally Added On: July 25th, 2011]
- Sugababes - Freedom [Last Updated On: September 4th, 2011] [Originally Added On: September 4th, 2011]
- Freedom River [Last Updated On: September 25th, 2011] [Originally Added On: September 25th, 2011]
- Wham! - Freedom [Last Updated On: September 25th, 2011] [Originally Added On: September 25th, 2011]
- Sistars - Freedom [Last Updated On: September 27th, 2011] [Originally Added On: September 27th, 2011]
- All Stars - Freedom (Theme from Panther) [Last Updated On: September 28th, 2011] [Originally Added On: September 28th, 2011]
- Richie Havens Sings "Freedom" [Last Updated On: September 29th, 2011] [Originally Added On: September 29th, 2011]
- Nokia N8 Pink - Freedom [Last Updated On: October 8th, 2011] [Originally Added On: October 8th, 2011]
- Wham! - Freedom with Lyrics [Last Updated On: October 12th, 2011] [Originally Added On: October 12th, 2011]
- Make Mine Freedom (1948) - Video [Last Updated On: October 13th, 2011] [Originally Added On: October 13th, 2011]
- Jason Upton - Freedom - Video [Last Updated On: October 18th, 2011] [Originally Added On: October 18th, 2011]
- Devo - Freedom Of Choice (Video) - Video [Last Updated On: October 19th, 2011] [Originally Added On: October 19th, 2011]
- Michael McDonald - Sweet Freedom - Video [Last Updated On: October 20th, 2011] [Originally Added On: October 20th, 2011]
- DJ BOBO - FREEDOM 1995 - Video [Last Updated On: October 21st, 2011] [Originally Added On: October 21st, 2011]
- George Michael FREEDOM '90 - Video [Last Updated On: October 24th, 2011] [Originally Added On: October 24th, 2011]
- Episode One: Economic Freedom [Last Updated On: October 25th, 2011] [Originally Added On: October 25th, 2011]
- FFVII Crisis Core Soundtrack: The Price of Freedom - Video [Last Updated On: October 27th, 2011] [Originally Added On: October 27th, 2011]
- Alain Clark - For Freedom (Official Video) - Video [Last Updated On: October 27th, 2011] [Originally Added On: October 27th, 2011]
- Bob Sinclar [Last Updated On: October 28th, 2011] [Originally Added On: October 28th, 2011]
- For Freedom - Video [Last Updated On: October 30th, 2011] [Originally Added On: October 30th, 2011]
- Braveheart Freedom - Video [Last Updated On: October 31st, 2011] [Originally Added On: October 31st, 2011]
- Wyclef Jean - "Freedom" (Song For Egypt) - Video [Last Updated On: November 4th, 2011] [Originally Added On: November 4th, 2011]
- Land And Freedom - Video [Last Updated On: November 7th, 2011] [Originally Added On: November 7th, 2011]
- Dan Balan - Freedom - Video [Last Updated On: November 9th, 2011] [Originally Added On: November 9th, 2011]
- Paul McCartney-Freedom+Let It Be@Concert For New York City - Video [Last Updated On: November 14th, 2011] [Originally Added On: November 14th, 2011]
- New Life Worship - It Was For Freedom - Video [Last Updated On: November 26th, 2011] [Originally Added On: November 26th, 2011]
- Laboratory pups get first taste of freedom in US. - Video [Last Updated On: December 7th, 2011] [Originally Added On: December 7th, 2011]
- Jackson Browne Performs "I Am A Patriot" at Freedom Plaza (12.05.2012) HD - Video [Last Updated On: December 7th, 2011] [Originally Added On: December 7th, 2011]
- Give-Me-Freedom - Video [Last Updated On: December 8th, 2011] [Originally Added On: December 8th, 2011]
- Jesus Culture - Freedom Reigns - Video [Last Updated On: December 12th, 2011] [Originally Added On: December 12th, 2011]
- rage against the machine - Freedom - Video [Last Updated On: December 22nd, 2011] [Originally Added On: December 22nd, 2011]
- Doug Stanhope on Freedom - Video [Last Updated On: December 26th, 2011] [Originally Added On: December 26th, 2011]
- The Beautiful Girls - Freedom - Video [Last Updated On: December 27th, 2011] [Originally Added On: December 27th, 2011]
- Michael Heart - "Freedom" - EXCLUSIVE OFFICIAL VIDEO - Video [Last Updated On: December 29th, 2011] [Originally Added On: December 29th, 2011]
- Wham! - Freedom - Video [Last Updated On: December 31st, 2011] [Originally Added On: December 31st, 2011]
- Richie Havens 1969 Woodstock - Freedom - Video [Last Updated On: January 1st, 2012] [Originally Added On: January 1st, 2012]
- Freedom ! - Video [Last Updated On: January 8th, 2012] [Originally Added On: January 8th, 2012]
- Elton John- Philadelphia Freedom - Video [Last Updated On: January 10th, 2012] [Originally Added On: January 10th, 2012]
- [M/V] ITAEWON FREEDOM (with JY Park) - Video [Last Updated On: January 12th, 2012] [Originally Added On: January 12th, 2012]
- Pharoah Sanders "You Got To Have Freedom" (1980) - Video [Last Updated On: January 26th, 2012] [Originally Added On: January 26th, 2012]
- Freedom Environmental Services, Inc. Signs Service Contracts With 14 Sonny's Real Pit Bar-B-Q Franchisees [Last Updated On: January 28th, 2012] [Originally Added On: January 28th, 2012]
- Pope's peace doves slow to taste freedom [Last Updated On: January 30th, 2012] [Originally Added On: January 30th, 2012]
- Why is Feb. 1 designated as National Freedom Day? [Last Updated On: January 31st, 2012] [Originally Added On: January 31st, 2012]
- Marcia G. Yerman: 'Chimes of Freedom' Celebrates the Power of Music and Activism [Last Updated On: January 31st, 2012] [Originally Added On: January 31st, 2012]
- Complaints boss urges UK press freedom [Last Updated On: January 31st, 2012] [Originally Added On: January 31st, 2012]
- New Freedom museum opens Saturday [Last Updated On: February 3rd, 2012] [Originally Added On: February 3rd, 2012]
- Underground Railroad Freedom Center battling tough times [Last Updated On: February 3rd, 2012] [Originally Added On: February 3rd, 2012]
- Freedom High School boys basketball team beats Easton Area High School [Last Updated On: February 3rd, 2012] [Originally Added On: February 3rd, 2012]
- Warship Freedom again breaks down at sea [Last Updated On: February 4th, 2012] [Originally Added On: February 4th, 2012]
- Freedom gymnasts set school record, win Cedar Run title [Last Updated On: February 4th, 2012] [Originally Added On: February 4th, 2012]
- Freedom tops FVL, takes hold of EVC [Last Updated On: February 4th, 2012] [Originally Added On: February 4th, 2012]
- Freedom claims SMAC wrestling tourney title [Last Updated On: February 5th, 2012] [Originally Added On: February 5th, 2012]
- Freedom Week In Bradley County [Last Updated On: February 7th, 2012] [Originally Added On: February 7th, 2012]
- Freedom Total Knee(R) System Receives Frost & Sullivan's Best Practices Award for "Product Differentiation Excellence ... [Last Updated On: February 7th, 2012] [Originally Added On: February 7th, 2012]
- Covert to Overt: 'Revolt how-to' earns big for US freedom factory - Video [Last Updated On: February 7th, 2012] [Originally Added On: February 7th, 2012]
- Ron Paul Interview On Freedom Watch 01/30/12 - Video [Last Updated On: February 7th, 2012] [Originally Added On: February 7th, 2012]
- Tortured Freedom: Libya's new rulers resort to old tactics - Video [Last Updated On: February 7th, 2012] [Originally Added On: February 7th, 2012]
- End the TSA for Freedom and Human Dignity - Video [Last Updated On: February 7th, 2012] [Originally Added On: February 7th, 2012]
- Were Run by Ruthless, Freedom Hating, Dangerous Scum! 3/3 - Video [Last Updated On: February 7th, 2012] [Originally Added On: February 7th, 2012]
- Were Run by Ruthless, Freedom Hating, Dangerous Scum! 1/3 - Video [Last Updated On: February 7th, 2012] [Originally Added On: February 7th, 2012]
- Defend our freedom to share (or why SOPA is a bad idea) - Video [Last Updated On: February 7th, 2012] [Originally Added On: February 7th, 2012]
- Biden on Internet Freedom Anti SOPA - Video [Last Updated On: February 7th, 2012] [Originally Added On: February 7th, 2012]