Is US defamation law’s “actual malice” requirement still fit for purpose? – Georgia Scarr

United States defamation law has made it famously difficult for claimants to win their cases. However, Supreme Court justices Neil Gorsuch and Clarence Thomas filed dissents in the case of Berisha v Lawson in July suggesting that a core precedent behind this difficulty is ripe for reconsideration.

The precedent in question comes from New York Times v Sullivan, a 1964 Supreme Court case in which the Court ruled unanimously that, on account of freedom of speech provisions in the First Amendment, public officials in government cannot prove libel without firm evidence that the defendant acted with “actual malice” – specifically, with the knowledge that the defamatory statement published “was false or [published] with reckless disregard of whether it was false”.

Three years later, in Curtis Publishing Co. v. Butts, the “actual malice” requirement was extended to apply to “public figures” outside government, and then in 1974 case Gertz v. Robert Welch, Inc. to those who have achieved “pervasive fame or notoriety” and those “limited” public figures who “voluntarily injec[t]” themselves or are “drawn into a particular public controversy.”

Gorsuch notes in his dissent, however, that these tests for “pervasive fame” and “limited” public figures seem outdated in a society where essentially anybody can attract a degree of notoriety in a particular specialised field.

See Berisha v Lawson itself: Shkelzen Berisha, a citizen of Albania and son of the country’s former Prime Minister, filed a claim in defamation against Guy Lawson in relation to Lawson’s book Arms and the Dudes: How Three Stoners From Miami Beach Became the Most Unlikely Gunrunners in History (later adapted into the film War Dogs). The book, said to be a true story, tells of the protagonists becoming international arms dealers who have various encounters with the Albanian mafia, of whom Berisha is said to be a member. Berisha maintains that he is not, and that Lawson relied on untrustworthy sources to make the contention. The District Court which heard the case granted summary judgment to Lawson, holding that Berisha was a “limited public figure” for the purpose of the controversy at issue and was unable to prove “actual malice” in Lawson’s book as required.

What qualified Berisha as a public figure was not his familial political connections, but the fact he voiced concern about his representation in the book and consequently his action against Lawson. In a system where theoretically, anybody could be deemed a public figure of whom a higher standard of evidence is required, it can be questioned whether the precedent of New York Times v Sullivan is preventing individuals from vindicating harm to their reputation in favour of unconstrained freedom of speech with no consequence for the spreading of misinformation.

Critics of this position and the media are likely to argue that overturning New York Times v Sullivan would lead to a chilling effect on free speech in the US, allowing those in positions of power to silence their detractors. This was indeed a key reason behind the precedent when it was introduced – so government officials could not unjustly silence the media outlets which had a particular responsibility for holding politicians and public figures to account.

The case saw L.B. Sullivan, the police commissioner of Montgomery, Alabama, sue the New York Times for defamation after it published a full-page advertisement placed by supporters of Martin Luther King Jr, which criticised the treatment that civil rights protestors were subjected to by Sullivan’s police force. The case was heard in a county court at first instance, with the local jury finding against the New York Times and awarding $500,000 in damages to Sullivan. This was far from the first time state officials had taken such an action against a publisher; by the time the Supreme Court handed down judgment southern officials had reportedly brought defamation claims against the media for damages totalling almost $300 million. While the claim argued reputational harm, at its core was the suppression of critical speech, particularly with regard to the civil rights movement. Beyond introducing the “actual malice” requirement, the precedent had the effect of preventing southern-state officials from silencing criticism arising out of the more liberal north. There is clearly great value to this public interest protection, which can comfortably be set apart from the “actual malice” requirement if the such protection is preserved in another way.

It cannot be ignored that the media landscape is vastly different now to that in 1964. Gorsuch comments in his dissent that the New York Times v Sullivan judgment was made at a time when major media companies employed vast teams of editors and fact-checkers, when broadcasters required licences and when news had to be physically printed and distributed at great cost. He notes it can be argued that media outlets strived to publish information they knew was true, as consumers would be willing to pay an increased price for accuracy and reliability. The likelihood of one of these outlets publishing an article with “actual malice” must have been relatively slim.

In 2021, however, the advent of digital journalism and decline of print have seen (ever more partisan) newsrooms face sweeping cuts, with the individuals responsible for fact-checking among those whose roles have been affected. We are also in an era where media outlets measure the performance of journalists increasingly by the page views and social media reach of articles, meaning the quality and accuracy of articles can be compromised in favour of quantity and ‘clickworthiness’. Meanwhile, thanks to the internet, we as individuals can all be publishers – with no editors or fact-checkers besides our own in-built instincts – and as a result misinformation is widely recognised as a serious societal issue.

In light of this vast change in the media landscape, is it not more important than ever to have the power to hold publishers to account – whether professional or otherwise? To be a publisher is no longer a position borne of power and privilege, and the lines of defence against inaccuracy that the New York Times v Sullivan precedent relied upon are not as strong as they once were.

The Supreme Court do not presently seem to agree – Berisha’s petition for the Court to overrule the “actual malice” requirement has been rejected, leading to Thomas and Gorsuch’s dissents. However, whether the New York Times v Sullivan precedent and its relevant extensions are fit for purpose in the 21^st century is a question which is unlikely to go away.

Georgia Scarr is a paralegal at Carter-Ruck