Now, a DC Circuit appeals court judge -- and close friend of Thomas's -- is suggesting that the court toss that standard. And his reasons are... um... something quite incredible. Apparently, he's mad that the media and big tech are mean to Republicans, and he's worried that Fox News and Rupert Murdoch aren't doing enough to fight back against those evil libs, who are "abusing" the 1st Amendment to spew lies about Republicans. As you'll see, the case in question isn't even about the media, the internet, or Democrats/Republicans at all. It's about a permit in Liberia to drill for oil. Really. But there's some background to go through first.

The key part of the Sullivan case is that, if the plaintiff is considered a "public figure," then they need to show "actual malice" to prove defamation. The actual malice standard is widely misunderstood. As I've heard it said, "actual malice" requires no actual malice. It doesn't mean that the person making the statements really dislikes who they're talking about. It means that the person making the statements knew that the statements were false, or made the statements "with reckless disregard for the truth." Once again, "reckless disregard for the truth" has a specific meaning that is not what you might think. In various cases, the Supreme Court has made it clear that this means that the person either had a "high degree of awareness" that the statements are probably false or "entertained serious doubts as to the truth" of the statements. In other words, it's not just that they didn't do due diligence. It's that they did, found evidence suggesting the content was false, and then still published anyway.

This is, obviously, a high bar to get over. But that's on purpose. That's how defamation law fits under the 1st Amendment (some might argue that defamation law itself should violate the 1st Amendment as it is, blatantly, law regarding speech -- but by limiting it to the most egregious situations, the courts have carved out how the two can fit together). Five years ago, 1st Amendment lawyer Ken White noted that there was no real concerted effort to change this standard, and it seemed unlikely that many judges would consider it.

Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above. You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find on... chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial — at least not from conservatives. There's been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there's no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of "hate speech" and other "hurtful" words. It seems unlikely that Trump would appoint any of these.

In short, there's no big eager group of "overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

And that's why Clarence Thomas's attack on the Sullivan standard was so shocking two years ago. It came basically out of nowhere. Thomas tried to make it all about "originalism", suggesting that if the framers of the Constitution didn't set up different standards for public figures, neither should the Supreme Court. Indeed, what was motivating Thomas' anger at the Sullivan standard seemed to be... that it let too many people be mean to public figures. He even seemed to argue that defamation law should be flipped to be more protective of public figures, since apparently those public figures are delicate little flowers who can't be forced to face pointed criticism. From his statement:

Far from increasing a public figure’s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels. See 3 Blackstone *124 (“Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man”); 4 id., at *150 (defining libels as “malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule” (emphasis added)). Libel of a public official was deemed an offense “‘most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.’”

In the two years since he wrote that, thankfully, there's been little other movement in the courts to attack the Sullivan standard. Indeed, as White had suggested, any move to do so seems to be viewed as blatantly conspiratorial. However, now an appeals court judge has done exactly what Thomas seemed to be signaling he wanted. And, perhaps not surprisingly, that judge happens to be not just a close friend of Clarence Thomas, but the judge who convinced Clarence Thomas to become a judge in the first place.

Judge Laurence Silberman has been on the DC Circuit since 1985, and has been on "senior status" since 2000. But apparently he's got a real bone to pick with the Sullivan standard. In an absolutely incredible back-and-forth majority opinion and dissent in a defamation case, it is made quite clear that Silberman hates the Sullivan actual malice standard, believes the media is super biased and mean to conservatives, and is no fan of the two other judges on the panel, Judge Sri Srinivasan (currently the Chief Judge on the DC Circuit) and Judge David Tatel.

Both the majority opinion, by Tatel with Srinivasan joining, and the dissent, snipe at the other side in quite pointed ways. But we'll get to that. First, the details of the case. Without going too deep into the weeds, it involves a deal in which Exxon sought to buy an oil drilling license from Liberia. There had been concerns about corruption regarding oil licensing deals in Liberia in the past -- including the very specific plot that Exxon was seeking to drill in. Liberia had put together a committee to help oversee these kinds of negotiations. After the deal -- the largest ever for Liberia -- was completed, the National Oil Company of Liberia awarded bonuses to the negotiators on the committee. Two of those negotiators, Christiana Tah and Randolph McClain, were Liberia's Minister of Justice and the CEO of the National Oil Company of Liberia. Each received a $35,000 bonus.

Global Witness, a non-profit that tries to highlight corruption and human rights violations related to "natural resource exploitation" put out a report alleging that these bonuses were bribes to get the deal to go through. Accusing someone of accepting a bribe is, at least on its face, a much more serious claim and could actually be defamatory (unlike many cases we see where people scream defamation over opinions). However, this case ran into a big problem: the lack of actual malice, which allowed the district court to dismiss the case relatively quickly (as an aside, Global Witness also sought to use DC's anti-SLAPP law, but unfortunately since the DC Circuit has said for years that DC's anti-SLAPP law cannot be used in federal court that failed at both the district and the appeals court level).

Here, the majority opinion explains (in quite readable fashion!) the actual malice standard, and why Tah and McClain failed to establish it. For those who want a nice summary of how actual malice works, the opinion is a good summation:

The actual malice standard is famously “daunting.” McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C. Cir. 1996). A plaintiff must prove by “clear and convincing evidence” that the speaker made the statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Jankovic III, 822 F.3d at 589–90 (second part quoting New York Times Co., 376 U.S. at 279–80). “[A]lthough the concept of reckless disregard cannot be fully encompassed in one infallible definition,” the Supreme Court has “made clear that the defendant must have made the false publication with a high degree of awareness of probable falsity,” or “must have entertained serious doubts as to the truth of his publication.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667 (1989) (alteration omitted) (internal quotation marks omitted); see also id. at 688 (using these formulations interchangeably). The speaker’s failure to meet an objective standard of reasonableness is insufficient; rather the speaker must have actually “harbored subjective doubt.” Jankovic III, 822 F.3d at 589.

But soon after this, the barbs at Silberman begin. The ruling notes that Silberman seems to have his own objective in dissenting -- even highlighting that the plaintiffs in the case didn't even make the argument Silberman so desperately seems to want them to make.

The dissent thinks this is an easy case. “In Global Witness’s story,” the dissent asserts, “Exxon was the briber,” Dissenting Op. at 1, yet the report admits that “Global Witness ha[d] no evidence that Exxon directed NOCAL to pay Liberian officials, nor that Exxon knew such payments were occurring,” Report at 31.

Critically, however, neither Tah nor McClain advances this theory—in their briefing to us, they never even mention the sentence on which the dissent relies. They make four specific arguments in support of their claim that Global Witness possessed actual malice, supra at 8, not one of which is that Global Witness had no evidence that Exxon was the briber, and for good reason. At most, the report implies that NOCAL, not Exxon, was the briber, thus rendering any lack of evidence as to Exxon’s direction or knowledge of the payments totally irrelevant.

The opinion then even calls out Silberman for trying to coax the lawyers to make the argument he wanted them to make instead of the argument they were actually making:

Indeed, when our dissenting colleague surfaced his theory at oral argument, it was so foreign to appellants’ counsel that our colleague had to spoon-feed him after he failed to get the initial hint. See Oral Arg. Tr. at 10 (“Well, no, it’s worse. Isn’t it stronger than that, counsel? We have no evidence.”). As our dissenting colleague himself has made clear, “we do not consider arguments not presented to us.” Diamond Walnut Growers, Inc. v. NLRB, 113 F.3d 1259, 1263 (D.C. Cir. 1997) (en banc). Or put another way, “appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).

Ooof. And, indeed, when you read the dissent, you can see why Tatel was so annoyed. Silberman pretty clearly has a point he wants to make and he's going to make it whether or not Tah and McClain raised the issue in the case or not. And that point is (1) the actual malice standard is bad, (2) mainstream media companies are bad because they support Democrats, (3) big tech is bad because it support Democrats, and (4) to some extent, Silberman thinks his colleagues on the bench are bad. Oh, but Fox News, Rupert Murdoch, and his buddy Clarence Thomas are all good. It's... quite incredible. I mean, check out this statement:

My disagreement with the district court is limited to the actual malice question (my disagreement with the Majority is much broader).

A key part of the disagreement is whether Exxon or NOCAL was considered the "briber" in this case, though the reason that's important seems fairly tortured, so I won't even get into it here. Suffice it to say, Silberman believes that the story Global Witness wrote is "inherently implausible" and therefore that should satisfy the standard for defamation. But in discussing it, Silberman again throws tremendous shade on his colleagues:

The Majority’s assertion that this argument was never made by the Appellants leads me to wonder whether we received the same briefs. In my copy, Appellants argue that “Global Witness subjectively knew that it had not been able to determine whether the payments of $35,000 to Christiana Tah and Randolph McClain were corrupt bribery payments. Yet . . . Global Witness proceeded to present to readers the defamatory message that in fact [] Tah and [] McClain had taken bribes.” Appellant Br. 36 (emphasis in original). That sounds to me a whole lot like accusing Global Witness of publishing its story with no evidence to back it up. The Majority, moreover, faults me for assessing the inherent (im)plausibility of Global Witness’s story, without a specific request from Tah and McClain to do so. But (as discussed) “inherently implausible” is a legal standard by which we assess Appellants’ arguments—not an argument to be advanced.

And from there, Silberman is off to the races, he spends a few pages accusing the majority of making stuff up, before finally getting around to the point he really wants to make. He wants to take Justice Thomas up on the offer to get rid of the actual malice standard entirely:

After observing my colleagues’ efforts to stretch the actual malice rule like a rubber band, I am prompted to urge the overruling of New York Times v. Sullivan. Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. See McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari). The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 380–88 (1974) (White, J., dissenting). As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone.

He at least acknowledges that it would be "difficult" to get the Supreme Court to "overrule such a 'landmark' decision," noting correctly that it would "incur the wrath of press and media." And it would, because it would open up the media (and basically everyone else) to a bunch of censorial SLAPP suits. Silberman then reminisces about pushing the Supreme Court to overrule another "similarly illegitimate constitutional decision" -- one that has been quite important in allowing people whose civil rights were violated by police to seek redress. He goes on to whine that other judges, including then Supreme Court Justice Kennedy, got upset with him for urging such an overturning of precedent. Kennedy, responding to Silberman, suggested that "we must guard against disdain for the judicial system." Silberman seems to relish his contrarian position:

To the charge of disdain, I plead guilty. I readily admit that I have little regard for holdings of the Court that dress up policymaking in constitutional garb. That is the real attack on the Constitution, in which—it should go without saying—the Framers chose to allocate political power to the political branches. The notion that the Court should somehow act in a policy role as a Council of Revision is illegitimate. See 1 The Records of the Federal Convention of 1787, at 138, 140 (Max Farrand ed., 1911). It will be recalled that maintaining the Brezhnev doctrine strained the resources and legitimacy of the Soviet Union until it could no longer be sustained.

He then goes through the details of the Sullivan ruling, arguing that it was clear judicial activism, and insists that such a ruling would never have happened today. Then he complains that it has given the press way too much power:

There can be no doubt that the New York Times case has increased the power of the media. Although the institutional press, it could be argued, needed that protection to cover the civil rights movement, that power is now abused. In light of today’s very different challenges, I doubt the Court would invent the same rule.

As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity.

And then it's all "those media orgs are so mean to my friends."

Although the bias against the Republican Party—not just controversial individuals—is rather shocking today, this is not new; it is a long-term, secular trend going back at least to the ’70s. (I do not mean to defend or criticize the behavior of any particular politician). Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets. And the news section of The Wall Street Journal leans in the same direction. The orientation of these three papers is followed by The Associated Press and most large papers across the country (such as the Los Angeles Times, Miami Herald, and Boston Globe). Nearly all television—network and cable—is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.

Uh... what?

Also, big tech is bad:

As has become apparent, Silicon Valley also has an enormous influence over the distribution of news. And it similarly filters news delivery in ways favorable to the Democratic Party. See Kaitlyn Tiffany, Twitter Goofed It, The Atlantic (2020) (“Within a few hours, Facebook announced that it would limit [a New York Post] story’s spread on its platform while its third-party fact-checkers somehow investigated the information. Soon after, Twitter took an even more dramatic stance: Without immediate public explanation, it completely banned users from posting the link to the story.”).

What does this have to do with a case regarding oil drilling in Liberia? You know as much as I do. But don't worry, Judge Silberman wants you to know that at least there's Rupert Murdoch to step in and balance the scales at least somewhat. Really. I'm not kidding.

To be sure, there are a few notable exceptions to Democratic Party ideological control: Fox News, The New York Post, and The Wall Street Journal’s editorial page. It should be sobering for those concerned about news bias that these institutions are controlled by a single man and his son. Will a lone holdout remain in what is otherwise a frighteningly orthodox media culture? After all, there are serious efforts to muzzle Fox News. And although upstart (mainly online) conservative networks have emerged in recent years, their visibility has been decidedly curtailed by Social Media, either by direct bans or content-based censorship.

He also has another footnote attacking the 1st Amendment rights of the internet companies, which he insists -- without any actual evidence, because none exists -- are "biased" against his Republican friends.

Of course, I do not take a position on the legality of big tech’s behavior. Some emphasize these companies are private and therefore not subject to the First Amendment. Yet—even if correct— it is not an adequate excuse for big tech’s bias. The First Amendment is more than just a legal provision: It embodies the most important value of American Democracy. Repression of political speech by large institutions with market power therefore is—I say this advisedly—fundamentally un-American. As one who lived through the McCarthy era, it is hard to fathom how honorable men and women can support such actions. One would hope that someone, in any institution, would emulate Margaret Chase Smith.

He then proceeds to complain about how the media and big tech are helping Democrats.

There can be little question that the overwhelming uniformity of news bias in the United States has an enormous political impact. That was empirically and persuasively demonstrated in Tim Groseclose’s insightful book, Left Turn: How Liberal Media Bias Distorts the American Mind (2011). Professor Groseclose showed that media bias is significantly to the left. Id. at 192–197; see also id. at 169–77. And this distorted market has the effect, according to Groseclose, of aiding Democratic Party candidates by 8–10% in the typical election. Id. at ix, 201–33. And now, a decade after this book’s publication, the press and media do not even pretend to be neutral news services.

It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. It may even give rise to countervailing extremism. The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness—if not eagerness—to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.

And that's how it closes. Even if there are legitimate reasons to question the "actual malice" standard, to go on an unhinged Fox News-style rant about "anti-conservative bias" seems particularly ridiculous. It sure looks like Silberman has been spending a bit too much time believing propaganda, and is seeking to torpedo a free press in response.

We also pointed out that the lawsuit completely misrepresented the article, pretending that Frankel's thesis -- again, that there didn't need to be any explicit deal -- was Frankel saying that there was "collusion" between the two. The case made no sense no matter how you looked at it. Frankel's article was an opinion piece -- and opinions aren't defamatory. It didn't allege what the campaign's lawsuit says it alleged, and there was no way in hell it could possibly meet the actual malice standard necessary for defamation.

It took a year, but the Supreme Court of New York (which, contrary to its name, is more like a district court), has tossed out the lawsuit, though denying the NY Times' request for sanctions against Harder. As we expected, this was not a difficult decision for the court to come to. First, it was obviously opinion, and thus not defamatory:

First, while the complaint alleges that the terms used in the article, such as “deal” and “quid pro quo,” are defamatory and false, Mr. Frankel’s commentary in his article is nonactionable opinion, and the overall context in which the article was published, in the opinion section of the newspaper, signaled to the reader that “the broader social context and surrounding circumstances [indicate] that what is being read . . . is likely to be opinion, not fact.” Gross v. N.Y. Times Co., 82 N.Y.2d 146, 153 (1993) (internal quotation marks and citation omitted). This is because “[t]he dispositive inquiry, under either Federal or New York law, is ‘whether a reasonable [reader] could have concluded that [the articles were] conveying facts about the plaintiff.’” 83 N.Y.2d at 152 (alterations in original) (quoting 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139 (1992)); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) (finding that statements of opinion are not actionable because “there is no such thing as a false idea”).

Then there's the actual malice problem -- in that the campaign failed to make any real arguments that would show that Frankel knew his statements were false or were made with reckless disregard for the truth (meaning he had substantial doubts about their truth):

Third, even if Mr. Frankel’s commentary was actionable as factual assertions, and even if such assertions were of and concerning the Trump campaign, the complaint fails to allege facts sufficient to support the requirement that the Times published the challenged statements with actual malice, meaning “knowledge that [the statements] were false, or [made] with reckless disregard for the truth.”... In this regard, bias, or ulterior motive does not constitute actual malice... This heavy burden exists because news organizations function as a platform for facilitating constitutionally protected speech on issues of public concern and courts will not impose defamation liability against these entities absent a clear showing of actual malice.

There was one other reason for the dismissal... which I am a bit confused about. The judge claims that the Campaign (the plaintiff in this case) has no standing, since the comments in the article were not about it:

Second, the challenged statements are not “of and concerning” plaintiff, which is a necessary element for a defamation action. For example, in Lazore v. NYP Holdings, Inc., 61 A.D.3d 440 (1st Dep’t 2009), the Appellate Division, First Department dismissed a complaint alleging defamation because “the offending statements were directed against a governing body . . . , rather than against its individual members.” 61 A.D.3d at *1. Further, a corporate entity has no standing to sue over statements that concern an entity’s employees or affiliates, but not the entity itself.... Here, the focus of Mr. Frankel’s column was the former President’s associates and family members, not the Trump campaign itself.

I find that a lot less compelling, since the thrust of the article was about the Campaign, as represented by the President's associates and family members, but either way this case was getting dismissed for the other reasons.

As for sanctions, the judge rejects them... with no explanation at all. However, with New York now having a shiny new more useful anti-SLAPP law, I do wonder if the Times might now use that to seek fees...

These claims -- buttressed by public statements, heated tweets, and multiple baseless lawsuits -- lit a fuse that triggered a January 6th explosion when Trump supporters stormed the Capitol building in a futile attempt to overturn the results of the presidential election.

Roughly a week after the insurrection, Dominion Voting Systems -- accused of being a tool of the corrupt Venezuelan government -- sued one of the more batshit extensions of Trump's legal army, Sidney Powell. The defamation suit accused Powell of lying about pretty much everything related to Dominion.

Unfortunately for Dominion, it is a public figure so it's going to have to prove deliberately false statements were made by people who knew the claims were false when they made them. Powell might be able to walk away from this suit, despite all of her false statements. Some were made in court which makes those claims immune from lawsuits. But others were made in public and those might end up costing her some money. Truth is the absolute defense to immunity but being a living, breathing caricature who embraces every galaxy brain conspiracy theory that floats by in the internet flotsam is also a defense. And that defense is "no one takes me seriously so it's unlikely any reasonable people took my wild-ass lying claims about Dominion seriously either." If Alex Jones can use it, so can Sidney Powell.

Dominion's next target is Rudy Giuliani, someone who echoed a bunch of Powell's wild claims and continued to do so as the Trump campaign (and other pro-Trumpers) lost lawsuit after lawsuit attempting to overturn election results.

Giuliani's escapades as Trump's legal rep have made it possible for him to make the same claim in his defense: that he's so devoid of credibility no reasonable person would take his claims seriously. But Dominion's lawsuit [PDF] makes a good case for a finding of actual malice by pointing out certain actions taken (or not taken) by Giuliani that strongly suggest he knew his public anti-Dominion statements were false.

The opening paragraph spells it out succinctly:

During a court hearing contesting the results of the 2020 election in Pennsylvania, Rudy Giuliani admitted that the Trump Campaign "doesn't plead fraud" and that "this is not a fraud case." Although he was unwilling to make false election fraud claims about Dominion and its voting machines in a court of law because he knew those allegations were false, he and his allies manufactured and disseminated the "Big Lie," which foreseeably went viral and deceived millions of people into believing that Dominion has stolen their votes and fixed the election.

The lawsuit runs 107 pages, but that's the crux of it. Giuliani made a lot of false public statements about Dominion, but he refused to make those claims in court. When lawsuits were filed, Giuliani wasn't about to turn his press conference ravings into sworn statements. That's a pretty solid indicator Giuliani had his doubts about some of the things he was saying publicly about Dominion. But it didn't stop him from saying these things publicly. It didn't stop him from making an alleged $20,000/day as Trump's legal rep. And it didn't stop him from shilling products on his podcasts and YouTube videos, where he repeated his false claims.

And there's a strong argument for damages. Almost anything Trump, Giuliani, and other pro-Trump litigators said about stolen elections and Dominion's involvement went viral. Dominion's reputation has certainly been harmed. There's a whole subset of Americans out there who fervently believe Dominion voting machines run on software developed by a company allegedly run by deceased dictator Hugo Chavez -- software apparently created solely for the purpose of stealing votes and elections. No part of this allegation is true and Dominion uses no software created by this company. But thousands -- if not millions -- of people still believe this, even though no evidence has surfaced to back these claims.

And, despite this lack of evidence, Giuliani has refused to retract any of his false claims. If Dominion can surmount the "actual malice" bar in this case, the former New York mayor (and current MAGA madman) could be out of a whole lot of his $20k/day money. Dominion is asking for $1.3 billion in damages. It will certainly not be awarded this amount even if it wins, but the damages will still be sizable and it may be able to recover its legal fees on top of it.

This isn't a slam dunk case but it's still going to be very difficult for Giuliani to get this one dismissed. A man who beclowned himself for Trump and his base is going to have a hard time talking himself out of this one.

Well, apparently things haven't changed that much in six years. Sunstein is back, again in the pages of Bloomberg, to again attack NYT v. Sullivan, and to make a very, very poorly argued case for using defamation law to combat "fake news." Before we get into the problems of the article, let's just note that focusing on "fake news" in general remains a really dangerous proposition. Remember, the term originally became super popular with Hillary Clinton supporters in the runup to the 2016 election, to highlight some completely made up stories in support of Donald Trump. Of course, after the election, Trump and the Trumpist community turned the "fake news" cry right around and made it a rallying cry for any accurate news reports they didn't like.

So even Sunstein's basic framing here, that we need to attack fake news with the law, should worry people. It's handing a tool to people who will twist it and abuse it to stifle accurate reporting they don't like.

Misinformation and fake news are now threatening public health and endangering democracy itself. What might help contain the problem? Part of the answer lies in a very old remedy: the law of defamation.

While much of his article talks about possible defamation cases from two voting technology firms, Dominion and Smartmatic, who might have legitimate defamation claims (though it's hardly a slam dunk) against some of the people and media organizations presenting insane conspiracy theories about their technology, Sunstein's embrace of defamation law is both confused and dangerous.

Sunstein discusses the "actual malice" standard in NYT v. Sullivan, and starts out by making the correct point that most people misunderstand "actual malice" to mean the dictionary definition, rather than the Supreme Court's definition. In truth, "actual malice" has nothing to do with "malice" (actual or not). For something to be actual malice it needs to be a statement that the speaker knew was false, or "with reckless disregard of whether it was false or not." Unfortunately, this part is often misunderstood as well. "Reckless disregard" also has a legal definition that does not match the dictionary definitions of those words. And while Sunstein was correct about the "actual malice" part meaning something different than people think it does, he gets the "reckless disregard" part wrong.

Unfortunately, that term is misleading. The court’s standard did not require “malice” at all. New York Times v. Sullivan rules that a speaker can be held liable for defamation if (a) she knew that what she was saying was false or (b) she acted with “reckless indifference” to the question of truth or falsity. Even if a speaker sincerely thinks she is telling the truth, she is unprotected if it should have been obvious that she wasn’t — if, for example, all of the reliable evidence suggested she was speaking falsely.

So, that's half right, but the closing part is misleading. The standard for "reckless disregard" is not whether or not "it should have been obvious." The legal standard for "reckless disregard" is that the person making the statement had serious doubts as to the truth of the statement, but they made it anyway. That's very different than what Sunstein says above. Indeed, he says the opposite -- that if the person "sincerely thinks she is telling the truth" then it can meet the reckless disregard standard.

This is false. In fact, this is misinformation. In an article about combatting misinformation.

I won't even get into his discussion of whether or not the two voting tech companies would be seen as public figures. But then Sunstein goes on to suggest a broad use of defamation cases to attack misinformation:

Beyond this specific situation, New York Times v. Sullivan can be used as a sword against the kind of misinformation that proliferates today. That’s deeply ironic, because the ruling was originally meant to provide a shield — giving broad protection to journalists, broadcasters and speakers of all kinds on the theory that most false statements are relatively innocent. In the court’s apparent view, “knowing falsehoods” — lies — would be pretty rare, and even recklessness would be unusual.

That was then, and this is now. For contemporary victims of misinformation, the New York Times decision can be deployed as a potent weapon not only against those who peddle lies, but also against those who are heedless of truth.

It has long been clear that in democracies that cherish freedom of speech, speakers need, and deserve, a shield. But it is increasingly clear that in democracies intent on self-preservation, victims of damaging falsehoods need, and deserve, a sword.

This is... also just misinformation itself. I fully understand the concerns about misinformation and conspiracy theories -- and the fact that they've received massive support from a wide group of people, up to and including the President of the United States. But most of it is protected by the 1st Amendment. And even as ridiculous and dangerous as some of the speech is it remains a good thing that it's protected under the 1st Amendment.

Take the standard that Sunstein suggests here and just think about how it gets deployed by Trumpists. They readily declare the NY Times, CNN, the Washington Post and others of "fake news" all the time. The Trump campaign is still suing a bunch of news organizations, and Trump himself has talked repeatedly of "opening up libel laws."

Some, likely including Sunstein, would argue that this is fine, and that courts and judges would protect against such abuses. But that completely misses both the point and the reality of how these lawsuits work. Defamation lawsuits are expensive. They involve a tremendous amount of work, and often tie up people and resources who could be working on other stuff. That's why SLAPP suits are so damn common. And Sunstein is basically saying that we need more SLAPP suits because he can't figure out a way to better educate people and get them to move away from believing in conspiracy theories. That's not a good approach, and it's not one that's legitimate under the 1st Amendment.

The Complaint contains two related counts: The first claims that Defendants defamed Plaintiff; the second claims that Defendants conspired with House Democrats to defame him.... The Post argues that both counts should be dismissed for failure to state a claim.... As explained below, the court agrees. And because Plaintiff’s proposed amendments fail to cure the Complaint’s fundamental defects, the court also denies Plaintiff’s Motion for Leave to File an Amended Complaint.

To see just how badly Nunes's claims failed, the judge even notes that Nunes and his lawyer Steven Biss tried to say that the first claim was "defamation per se," but as the court notes, that's not actually what they claimed. It's kind of stunning how frequently people assume that "defamation per se" means "obvious defamation," which often translates into "obviously that was really mean." But... that's not what it means. The specifics of defamation per se differ depending on local defamation laws, but it generally only matters for determining damages, not whether or not something is actually defamatory (or really mean). It's just that if you can show defamation per se (which is generally limited to a few categories of defamation that would be seen to obviously undermine someone's reputation) then you don't have to show damages -- rather, damages are assumed.

But, as the judge notes here (and I'll just say, it's probably not a good start when a judge starts a ruling by noting that the thing you argued was your first claim was not what you claimed it was), they didn't actually plead defamation per se:

Although Plaintiff styles the first count as “defamation per se,”... his claims are more appropriately considered defamatory implication claims. “[D]efamation by implication stems not from what is literally stated, but from what is implied.” White v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C. Cir. 1990). Plaintiff does not challenge the substantial truth of any statement in the Article. ... Rather, he alleges that “[t]he defamatory gist of the [Article] is that Plaintiff lied to and deceived the President of the United States[.]”... Thus, Plaintiff contests not any assertion of fact contained in the Article but, rather, the meaning conveyed by those facts

And, as we've discussed regarding similar cases in the past, this is not how defamation law works at all. And that's especially true here.

To establish defamation by implication, the plaintiff must demonstrate (1) that “a defamatory inference can reasonably be drawn” and (2) that “the particular manner or language in which the true facts are conveyed” supplies “additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference.”... Here, the Complaint alleges two defamatory implications stemming from statements in the Article, neither of which can rationally be considered reasonable or intended or endorsed.

Plaintiff first alleges that Defendants defamed him by implying that he “lied to and deceived the President of the United States” by telling the President that Shelby Pierson “had given an exclusive briefing” to Representative Adam Schiff.... The Article does not, however, say that Plaintiff told the President that Pierson had delivered an “exclusive briefing” to Representative Schiff. It reports only that “Trump erroneously believed that Pierson had given the assessment exclusively to Rep. Adam B. Schiff.”... Plaintiff pieces that statement together with the Article’s subsequent statement that “Trump learned about Pierson’s remarks from [Plaintiff]” to allege the implication that Plaintiff lied to the President.... But such an inference is unreasonable. Even if one could plausibly read the Article as implying that Plaintiff’s communications with President Trump somehow contributed to the President’s erroneous belief, nothing in the Article suggests that Plaintiff affirmatively “lied to and deceived” the President. As the Post notes in its brief: “In the absence of any other explanation, the reasonable assumption is that there was a simple misunderstanding or miscommunication.” ... The defamatory implication Plaintiff asserts is further negated by the Post’s description of the briefing as one “offered to all members of the committee.”... That uncontested fact leaves the reader with the impression that the President’s “erroneous” understanding was the product of mistake or misunderstanding, not a falsehood uttered by Plaintiff. This view is reinforced by the Article’s description of Plaintiff as “a staunch Trump ally.”... Plaintiff points to no facts to support the inference that a “staunch ally” would deliberately deceive the President about the exclusivity of an intelligence briefing, when the fact of the briefing’s access to all members was so readily ascertainable. For these same reasons, the alleged defamatory inference cannot be considered either intended or endorsed by Defendants.

Not a good start. How about the next one?

Plaintiff’s second alleged implication fares no better. The Complaint highlights the Article’s statement that “Trump’s opinion of [Acting Director of National Intelligence Maguire] shifted . . . when he heard from a Republican ally about [Pierson’s] remarks.”... In Plaintiff’s view, that statement implies that Plaintiff sought “to ‘ruin’ Maguire’s chances of becoming the permanent intelligence chief.”... But as the Post points out, the Article explains that it was “[t]he intelligence official’s analysis and Trump’s furious response [that] ruined Maguire’s chances of becoming the permanent intelligence chief,” not Plaintiff’s characterization of Pierson’s remarks. ... As a result, any inference that Plaintiff sought to “ruin” Maguire’s chances for appointment as Director of National Intelligence is unreasonable. And assuming it were reasonable, Plaintiff provides no warrant for the idea that “the particular manner or language” of the Article’s statements supplies “additional, affirmative evidence suggesting that the [Post] intends or endorses” such an inference.

From there, the court goes even further, pointing out that even if there were some defamatory implication in the article (and again, there was not), it couldn't even come close to pleading "actual malice" standard necessary for defamation of a public figure. As is often the case in crazy SLAPP suits, rather than plead the actual points in the actual malice standard, Biss and Nunes chose to repeat performative nonsense and conspiracy theories about how mean the defendants were. The court points out that this is not how any of this works.

Instead of engaging with the Post’s arguments on actual malice, Plaintiff repeats various— largely conclusory—allegations from his Complaint. ... One set of allegations amounts to nothing more than the naked assertion that Defendants knew the statements in the Article were false.... This type of pleading, which offers no more than “labels and conclusions” and a reference to the relevant legal standard, does not satisfy Rule 8. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555); see also id. (noting that a complaint does not suffice “if it tenders naked assertions devoid of further factual enhancement” (cleaned up)).

Another set of allegations boils down to the claim that Defendants published the Article due to animus against Plaintiff and others.... Besides the fact that these allegations are similarly conclusory, “caselaw resoundingly rejects the proposition that a motive to disparage someone is evidence of actual malice.” ...

Plaintiff also peppers his opposition brief with several stray allegations that do nothing to move the needle. First, he cites his allegation that, pre-publication, Defendants initially represented that Plaintiff and the President met at the White House on February 13, 2020, even though Defendants did not ultimately include that inaccuracy in the Article.... The court struggles to understand how a decision not to publish an inaccurate statement supports the claim that Defendants knowingly published false statements in the Article. If anything, Defendants’ attempted verification and subsequent exclusion of the inaccurate statement suggests the opposite. Next, Plaintiff contends that Defendants “abandoned all journalistic standards and integrity . . . in writing, editing, and publishing the [Article].”... Yet Plaintiff nowhere identifies the “journalistic standards and integrity” that the Post purportedly violated. He cites Gilmore v. Jones for the general proposition that a “failure to investigate or observe journalistic standards, although not determinative, is relevant to the actual malice inquiry,” ... But in Gilmore itself, the departure from journalistic standards was a failure to seek comment... the opposite of what happened here.... Finally, Plaintiff references his allegation that Defendants knew he was in Tulsa, Oklahoma, for a campaign event on February 14, 2020, the day after the classified briefing. He maintains this fact shows that he could not have possibly advised the President about the briefing. ... Although his allegation includes a specific fact that might bear on Defendants’ subjective knowledge, it does not conflict with what the Post reported in the Article. As the Post notes, “[t]he Article does not report when President Trump learned of the briefing from [Plaintiff] (or how) . . . [Plaintiff] could have conveyed the information to President Trump on a different day[.]” ... The allegation, therefore, does not support Plaintiff’s claim that the Post knew that anything it reported in the Article was false

Nunes' and Biss' "common law conspiracy" claim fares no better because, as again is so often the case in SLAPP suits, all these other claims are just attempts to claim defamation under another name.

The court then rejects Biss' attempt to file an amended complaint noting that nothing in the proposed complaint could solve any of this.

Here, the court concludes that Plaintiff’s amendments would be futile because they fail to cure the defects explained above. For one, the Amended Complaint contains no further allegations that would satisfy the pleading requirements for defamation by implication.... Moreover, the Amended Complaint does nothing to address Plaintiff’s inability to plead actual malice. Instead, it repeats the same litany of conclusory or otherwise insufficient allegations.... Plaintiff invites the court to reconsider the actual malice standard established in New York Times v. Sullivan... , but for obvious reasons, the court cannot do so, see Agostini v. Felton, 521 U.S. 203, 237 (1997) (indicating that lower courts should “leav[e] to th[e] [Supreme Court] the prerogative of overruling its own decisions”).

Of course, Nunes may appeal and waste more of the Washington Post's time and money. And he still has his other SLAPP suit against the Washington Post that was just filed last month.

It truly is impressive just how many bad SLAPP suits Devin Nunes has filed. Considering that he's repeatedly expressed his support for "free speech" and the 1st Amendment, as well as complained about "frivolous litigation," it really is worth noting that he is alone among elected officials in Congress to file so many lawsuits attacking the free speech of the media and his critics.

Admittedly, CZ's support for "free speech" often seems to lack an understanding of what actual free speech means. He has (falsely) said that freedom of speech does not cover lies, which is simply incorrect in the US context. Of course, not all lies are protected. There is a very narrow slice that constitutes defamation that is not protected. But most lies and false speech is very much protected under the 1st Amendment and thus, contrary to CZ's belief, part of "free speech."

Given all that, I figured at the very least that Binance and CZ would have a stronger case against Forbes. But it's staggeringly weak. It appears to be a fairly classic SLAPP suit, designed to try to silence the media and suppress content that could be interpreted to make Binance look bad. The article, written by Forbes staffer Michael del Castillo, discusses a presentation that Forbes got a hold of, that the article claims was presented internally within Binance, detailing ways in which the company might avoid US regulators to offer highly leveraged cryptocurrency derivatives trading. The article mostly focuses on the details of the presentation, and then highlights how some moves that Binance has made appears similar to what is suggested in the presentation.

It is true that the Forbes article does not paint Binance in a positive light, and certainly raises questions about the company's actions. But to be defamatory there needs to be blatantly false statements of fact. And while the lawsuit does put out a list of 20 supposedly defamatory statements, some are clearly opinion, some are clearly taken completely out of context, and many are opinions based on disclosed facts -- all of which would make them not defamatory. For example, the very first statement that the lawsuit says is defamatory is:

Binance is pursuing an “Elaborate Scheme To Evade Bitcoin Regulators.”

But, note that "pursuing" is not put in the quote. Because the article doesn't directly say that. It notes that there was this presentation, which it shows a screenshot of and quotes extensively, and then notes the actions that Binance has taken that match what was in the document. But the factual claims of reporting on the document existing and what it says, as well as reporting on Binance's actual actions within the US don't seem to be denied.

Binance argues in the lawsuit that the guy who created the document, Harry Zhou, "is not and never was an employee of Binance." But the Forbes article notes that Binance's chief compliance officer Samuel Lim had emailed Forbes to confirm that Zhou had been a Binance employee. Based on that, Forbes certainly had reason to state that in its article. Bizarrely, the lawsuit says that that statement (the one about Lim emailing Forbes and confirming that Zhou had been an employee) is itself defamatory. That seems like a pretty straightforward claim. And, sure, if it turns out that Lim never sent any such email, then there's maybe a legit case here, but that would be... surprising. Also, the article presents further evidence that Zhou and Binance are connected in noting that the American Binance entity, Binance.US's "initial documents" (I assume they mean incorporation documents) showed that Binance.US shared an address with Zhou's previous company, Koi Trading. In fact, it was reported that Binance.US's original documents said that its address was not just at the same location as Zhou's Koi, but listed as "c/o Koi Compliance." It's possible that Zhou was never technically an "employee" of Binance, but there's enough evidence presented that shows that saying that is simply not defamatory.

Many of the other supposedly defamatory statements are either about Zhou being an employee, or simply repeating what was apparently in the document that Forbes got ahold of. Then you have some statements that are clearly opinion, such as:

“[Binance is] reminiscent of Amway-style multi-level marketing organizations.”

That line is also out of context. It elides the "somewhat" before "reminiscent" and the full statement is clearly opinion:

Binance’s novel approach, which is somewhat reminiscent of Amway-style multi-level marketing organizations, has created loyalty among its customers, and solved the nagging problems of retention experienced by many exchanges.

That's not defamatory. Or how about this:

“[T]here is speculation that the FBI and the IRS may be investigating” Binance.

That's not saying there absolutely is such an investigation -- it just notes that there is speculation of such an investigation.

Perhaps more importantly, nothing in the complaint even remotely tries to get over the actual malice standard, which is clearly required here, as the Supreme Court has held that it also applies in defamation cases brought by companies over issues of public interest. Yet, this is the only attempt to get over the actual malice standard that I can find in the complaint:

To the extent that actual malice is required to be pleaded and proven, Defendants made the false statements either knowing that the statements were false or with reckless disregard for the truth.

That's... just stating what the actual malice standard is. The complaint presents no real evidence that Forbes knew the report was false (indeed, it appears the company continues to stand by the report. The reporter highlighted the reasoning for all of the arguments, and disclosed what the reasoning was based on. This is the opposite of actual malice.

Frankly, it's surprising just how weak this all is. Especially given that filing this lawsuit is only going to drive that much more attention to the original Forbes article, and what's written in it. Filing this lawsuit seems like the ultimate Streisand Effect, only serving to bring more attention to the claims in the article, rather than refuting any of them.

Oh, and of course it's important to note that New Jersey, where the lawsuit has been filed, has no anti-SLAPP statute at all. Every state needs a strong anti-SLAPP statute, and we need a federal anti-SLAPP law to stop these censorial lawsuits designed to stifle free speech.

If you don't recall, this particular lawsuit was about an opinion piece on CNN by Larry Noble, a former general counsel for the Federal Election Commission, who laid out a detailed analysis of the Mueller report about Russian interference in the 2016 election, and how it likely violated Federal Elections laws. The article expressed Noble's opinions, based on clearly disclosed facts. And that, by definition, should not be defamatory. District court judge Michael L. Brown -- who was appointed to the bench by Trump -- rejects the complaint, but not because it was opinion and therefore not defamatory.

The case focuses on a single statement in Noble's CNN article:

“The Trump campaign assessed the potential risks and benefits of again seeking Russia’s help in 2020 and has decided to leave that option on the table”

While many other statements in the article include language making it clear that these are Noble's opinion, that one sentence doesn't have that specific language, and that opens it up to being seen as a statement of fact, provable true or false.

A reasonable reader could readily understand the first part as alleging a weighing of the risks and benefits. It has a precise meaning. Defendants argue the second part is “couched in figurative, imprecise language, and thus is not actionable under New York [l]aw.” (Id. at 16.) The Court disagrees. While “[s]tatements ‘couched in loose, figurative or hyperbolic language in charged circumstances’ are more likely to be deemed opinions,” it is not an inflexible rule, and “the court should weigh the totality of the circumstances.”.... Thus, while “left on the table” is figurative language, it is also precise language. A reasonable reader could readily understand it to mean “available for consideration.” The Statement satisfies the first factor of the test.

However, what kills the lawsuit is the failure of Harder and the Trump Campaign to make much of an effort at all to get over the NYT v. Sullivan standard of defamation of a public figure. In order to meet that standard, they need to show that CNN/Noble knew that what was written was false, or had "reckless disregard" for the truth (which doesn't just mean they were sloppy -- it has to mean some actual action to avoid the truth). It seems that Harder barely even bothered to try to get over this "actual malice" bar, and the judge is not impressed:

Most of the allegations in the complaint regarding actual malice are conclusory. Plaintiff, for example, alleges in a purely conclusory manner that Defendants “clearly had a malicious motive” and “knowingly disregarded all . . . information when it published the Defamatory Article.”... The complaint’s allegation that Defendants were “aware at the time of publication” that the Statement was false due to “[e]xtensive public information” is also conclusory and without factual support.... Allegations such as these amount to little more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” which are insufficient to support a cause of action....

Plaintiff’s only other allegation of actual malice is that Mr. Noble had “a record of malice and bias against the President” as evidenced by a tweet and previous articles he had written.... In the tweet, Mr. Noble wrote: “Trump cheats and lies, and when caught, lies again and claims the right to make the rules. He claims defeats as victories, takes credit for anyone’s success and blames his failures on others . . . .” (Id.) The Supreme Court has emphasized “that the actual malice standard is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of the term.”... The tweet might show Mr. Noble’s ill will towards the President, but it fails to plead actual malice in the constitutional sense—that is, it does not show Mr. Noble made the Statement with knowledge that it was false or with reckless disregard of whether it was false.

And thus the case is dismissed, though they can try to amend the complaint to plead actual malice. That seems quite unlikely to get anywhere.

In the meantime, this should be another reminder of why we need better state anti-SLAPP laws (that can apply in federal court) and a full federal anti-SLAPP law.

But back to the defamation suit, which Mitchell filed against Twin Galaxies. He recently got the court allow him to proceed to trial after Twin Galaxies brought an anti-SLAPP suit to the court.

In his ruling on Twin Galaxies' anti-SLAPP motion, Judge Gregory Alarcon ruled that Mitchell is a public figure in the gaming community and that Twin Galaxies was discussing a controversy of public interest to that community. That means Mitchell will have to prove at trial both the falsity of Twin Galaxies' claims and that the organization acted with "actual malice" in making them.

While the ruling is careful not to "weigh evidence or resolve conflicting factual claims" on that score until the full trial, Judge Alarcon does tip his hand a little as to what evidence he finds potentially compelling. In particular, the judge seems interested in why Twin Galaxies refused to interview a number of witnesses Mitchell put forward to testify to the authenticity of his score performances.

Apparently at issue is that Mitchell wanted a witness, specifically the referee of his Donkey Kong high score, to be interviewed and considered by Twin Galaxies prior to their having negated Mitchell's high scores. Here's the problem: that referee has also been banned by Twin Galaxies for cheating in trying to get high scores in an unrelated video game. Still, the court notes that, at this stage, the deference is given to the plaintiff and, in that specific light, Twin Galaxies' refusal to consider witness testimony is enough to let this proceed.

Mitchell, true to his self-promoting history, is taking a victory lap on all this, as though he'd won a trial. He hasn't. Instead, he's opened himself up to discovery.

Even as Mitchell has met his burden of "minimal merit" in the anti-SLAPP motion, Judge Alarcon also writes that Twin Galaxies has "satisfied the low burden to show a reasonable possibility of prevailing in this action" in a separate motion.

The scoreboard has presented evidence to "[support] that its statement does not show actual malice," the judge writes, and which "supports that Twin Galaxies did not harbor doubt as to the truth of its statement, as its statement was made after Twin Galaxies' lengthy investigation on the dispute. The testimony of [Twin Galaxies owner and CEO Jace] Hall's belief that eyewitness evidence was unnecessary may reasonably go in [Twin Galaxies'] favor on this point, undermining [Mitchell]'s claim that [Twin Galaxies] acted with reckless disregard of the truth."

It's important to be able to keep two things in your head at once: that Mitchell may well have validly broken the Donkey Kong record as he claims and that Twin Galaxies did not do anything close to reaching the actual malice standard required for a defamation case of a public figure. And, despite Mitchell's public statements to the contrary, the lawyer for Twin Galaxies doesn't seem particularly worried.

Mitchell was helped in the anti-SLAPP motion, Tashroudian says, by the fact that "at this early stage the court is bound to accept whatever Mitchell puts forward as true." That includes a lot of what Tashroudian calls hearsay evidence involving phone calls where Hall allegedly told Mitchell and Twin Galaxies founder Walter Day that he "didn't care about certain evidence."

"The court is not allowed to determine the credibility of these statements [at this point] and must accept them as true," Tashroudian tells Ars. "[At trial] we'll be able to show that Mitchell is not credible because we have numerous situations of documented falsehoods in his papers. I'm confident that... after all of the evidence has been adduced, and when Billy is deposed and not allowed to hide behind declarations, the truth will come out."

I have no tea leaves to read, but those are the words of an attorney quite confident in the video evidence his client has to back up its statements. All I'll say is that Mitchell had damned well better be right that he broke those Donkey Kong records on a legit and standard Donkey Kong machine if he's really goin to proceed to discovery.

We should not continue to reflexively apply this policy driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

Of course, if we go back and "carefully examine the original meaning of the First and Fourteenth" Amendment, it's possible one could conclude that all of defamation law violates the 1st Amendment in suppressing speech (the 14th Amendment part just extends the 1st Amendment restrictions beyond Congress to state laws as well). But still, as we discussed at the time, this was surprising from Thomas, as there seems to be basically no interest anywhere else in revisiting the NYTimes v. Sullivan ruling. It's not like other instances where you have a bunch of people itching to revisit old cases.

The question, then, is whether or not anyone would take up Thomas's publicized desire to revisit this standard. And apparently he's found a taker in... Rep. Devin Nunes. As you'll recall, Devin Nunes has been filing a series of SLAPP suits against the media and his critics. The cases haven't been going well for him at all. A couple of months ago, a judge easily tossed out one of Nunes' cases. This one, filed in Iowa (a state without an anti-SLAPP law) against Esquire magazine and reporter Ryan Lizza over a great article, "Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret.

As the judge pointed out, nothing in the complaint alleges anything possibly defamatory.

The statements at issue also do not assert provably false facts, nor do they imply the existence of undisclosed facts. The statements that plaintiff has a secret, hid or concealed his family’s move, or conspired with others to hide the move do not have “precise core meaning for which a consensus of understanding exists.” ... There is no precise meaning for how many people can know a fact for it to remain a “secret” nor is there an accepted line between “hiding” or “concealing” a fact and simply declining to publicize it. Likewise, in this context there is no precise meaning of “conspiracy.” For the same reasons, the challenged statements are not “objectively capable of proof or disproof[.]”...

Nunes and his lawyer, Steven Biss, have since appealed that ruling to the 8th Circuit appeals court (first noted by Nunes' hometown Fresno Bee, whose parent company Nunes is suing in a different case). The full appeal is not yet public (for reasons I don't understand it shows in the docket, but is not available to download). What is available, however, is a Designation and Statement of the Issues, which at least details what Nunes will be arguing in the appeal. And the key point? They're attacking the NYT v. Sullivan standard:

1. Did the District Court follow the proper standard in evaluating Nunes’s amended complaint or did the District Court view the amended complaint in a light most favorable to the Defendants?

2. Is New York Times v. Sullivan, 376 U.S. 254 (1964) good law? Does the United States Constitution require public figures to satisfy an actual-malice standard in state-law defamation suits? Should Sullivan be reconsidered and overturned?

3. Did the District Court err in applying Sullivan in this case?

4. Did Nunes plausibly allege that the Defendants published the Article with actual malice?

Those are the first four of 14 issues with the other issues basically saying that even if Lizza's articles don't state any defamatory facts, Nunes wants the court to say that "rhetorical questions" in the article "imply the existence of defamatory facts." All of this seems unlikely to be successful. Extremely unlikely.

In general, courts will avoid dealing with deeper constitutional questions, especially when cases can be dealt with in a more straightforward manner, and this case can be (and was) easily dismissed because nothing in the article is a defamatory statement of fact. And, of course, it's not for an appeals court to tell the Supreme Court that its earlier ruling was "bad law." Of course, the goal here seems to be to get the Supreme Court to revisit NYT v. Sullivan, as Thomas as suggested is necessary. So, chances are they know this is a loser in the appeals court, but are hoping that they can then appeal it to the Supreme Court later. That... also seems unlikely to work. While Thomas has indicated he's interested in revisiting this standard, it would be surprising if any of the other Justices agree. And it seems likely that the entirety of the media industry would blow its lid if this issue was up for revisiting at the Supreme Court.

But, really, this is quite telling. Nunes seems to think that he -- a public elected official -- should not have to face mean comments about himself. That's ridiculous. He's a public official. He should grow a thicker skin, not try to destroy the 1st Amendment because his ego can't take people highlighting his family trying to quietly hide the fact that they moved their farm from California to Iowa.

But, first, back during the 2016 campaign, then candidate Donald Trump uttered his famous "big idea" to "open up" libel laws in response to his displeasure that some of the media was criticizing much of his usual nonsense. This was, quite clearly, an attack on the 1st Amendment -- and it was those strong 1st amendment protections for free speech that have actually helped protect Trump himself from multiple lawsuits.

However, when discussing Trump's original promise to "open up" libel laws, many people pointed out that there really wasn't very much he could do. The 1st Amendment is the 1st Amendment -- not something that Trump can easily change. And specific defamation laws are from each state, not the federal government (and must be bounded by what the 1st Amendment allows). We did note that there were some ways that Trump could create free speech problems, but it was generally agreed upon that it was unlikely to happen in the courts. In 2016, Ken "Popehat" White had a detailed post on how it was exceedingly unlikely that the courts would change the key aspects of 1st Amendment law, with a particular focus on New York Times v. Sullivan, which is the seminal 1964 Supreme Court ruling credited with creating a "re-birth of the 1st Amendment."

As Ken wrote in his piece, NYT v. Sullivan is so settled that there's basically no movement at all to change it.

Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above.¹ You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find on... chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial — at least not from conservatives. There's been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there's no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of "hate speech" and other "hurtful" words. It seems unlikely that Trump would appoint any of these.

In short, there's no big eager group of "overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

The key bit of NYT v. Sullivan was to establish that there's a very high bar in defamation cases involving a "public figure." Specifically, the standard the Supreme Court established is that in such cases, a plaintiff need to show "actual malice" -- which doesn't just mean that the defendant really dislikes the plaintiff. The actual malice standard isn't actually about "actual malice," but rather that the speaker made the statements knowing they were false, or exercising "reckless disregard" for whether or not they were true. The Supreme Court established that this high bar was necessary to satisfy the First Amendment, and guarantee that no laws were made that infringed up on the right of free expression.

So, the bombshell this week was a concurrence by Justice Thomas in denying a petition to rehear a defamation case concerning Bill Cosby and one of his accusers. The specifics of the case revolved around whether or not the accuser qualified as a "public figure" and thus had to clear the higher bar as established by the NYT's case. The 1st Circuit had ruled in 2017 that McKee was a public figure. The cert petition tried to challenge that decision. The Supreme Court decided not to hear it, which isn't all that surprising. What was surprising is that Thomas decided to use this decision not to hear the case (with which he agreed) to assert something much more controversial: that NYT v. Sullivan was bad law and shouldn't bind the court:

New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own “‘federal rule[s]’” by balancing the “competing values at stake in defamation suits.” Gertz, supra, at 334, 348 (quoting New York Times, supra, at 279).

We should not continue to reflexively apply this policydriven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

As Ken White had written in his piece, this is somewhat surprising -- bordering, but not quite, on chemtrails level nuttiness. Thomas goes on for pages explaining why he disagrees with the ruling in Sullivan, first arguing that because the standard itself is not in the Constitution, there's no Constitutional support for it:

But the Court also addressed “the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.” Id., at 256. The Court took it upon itself “to define the proper accommodation between” two competing interests—“the law of defamation and the freedoms of speech and press protected by the First Amendment.” Gertz, 418 U. S., at 325 (majority opinion). It consulted a variety of materials to assist it in its analysis: “general proposition[s]” about the value of free speech and the inevitability of false statements, New York Times, 376 U. S., at 269– 272, and n. 13; judicial decisions involving criminal contempt and official immunity, id., at 272–273, 282–283; public responses to the Sedition Act of 1798, id., at 273– 277; comparisons of civil libel damages to criminal fines, id., at 277–278; policy arguments against “selfcensorship,” id., at 278–279; the “consensus of scholarly opinion,” id., at 280, n. 20; and state defamation laws, id., at 280–282. These materials led the Court to promulgate a “federal rule” that “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279–280. Although the Court held that its newly minted actual-malice rule was “required by the First and Fourteenth Amendments,” id., at 283, it made no attempt to base that rule on the original understanding of those provisions.

That's a... somewhat bizarre version of Constitutional originalism, and would suggest that basically none of the standards the Supreme Court has established in its history have any merit. Yikes.

New York Times was “the first major step in what proved to be a seemingly irreversible process of constitutionalizing the entire law of libel and slander.”

Well, yeah. Because, by definition, libel and slander impact speech, and the 1st Amendment says that you can't pass laws that prohibit free expression. So, unless Thomas is actually arguing that all defamation law is unconstitutional (which would be an even more extreme position), then this argument makes no sense. But he's not arguing that at all. It goes on for pages, talking about how early in the US's history libel laws were super important -- especially in protecting the reputations of famous people:

Far from increasing a public figure’s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels. See 3 Blackstone *124 (“Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man”); 4 id., at *150 (defining libels as “malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule” (emphasis added)). Libel of a public official was deemed an offense “‘most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.’”

After talking about a bunch of highly questionable cases from a century or so before the NY Times decision, Thomas concludes with the claim that states are more than capable of "balancing" the rights of free expression with "reputational harms":

We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.

This is an ahistorical take on reality. Defamation laws were routinely used by the powerful to silence criticism. Indeed, that is still the case in many other countries that don't have a standard akin to the actual malice standard in the US. We routinely write about speech squelching cases in places like the UK and Australia. As the Atlantic's coverage of the 50th anniversary of the NYT v. Sullivan decision states:

If there were no Sullivan, there likely would not have been a release of the Pentagon Papers or a rigorous investigation into Watergate or much of any withering criticism of government that appears today in any medium.

The NYT v. Sullivan is a supremely important case in establishing the 1st Amendment as truly protecting free speech -- and specifically protecting the rights of anyone to criticize public officials. It is disappointing and somewhat shocking that any Supreme Court Justice is willing to even consider going back on that standard. Hopefully, the other 8 Justices retain their recognition of its importance.

Was this attack [by Hodgkinson] evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.

This just simply wasn't true. To begin with, Palin's map contained only political districts under stylized crosshairs, not faces of legislators. Not only that, but there's been no conclusive link between Palin's crosshair map and Loughner's shooting. This was noted in two corrections published by the New York Times the next day, which also excised the two false statements.

Sarah Palin sued the New York Times for defamation a few weeks later because it apparently just wasn't enough to catch a "fake news" purveyor making some truly laughable assertions in an op-ed. The defamation suit has died a quick death, although Palin's claims were investigated with a bit more thoroughness than usual once the parties had entered their motions.

An examination of the run-up to the publication of the erroneous op-ed showed there was no actual malice in the New York Times' assertions -- just some really bad op-edmanship. The statements were provably false, which is key to defamation claims, but there also has to actual malice. And while many people think they know what's meant by actual malice, it's probably not what you think. In the legal context, actual malice requires "knowledge" of falsity before publication or reckless disregard. It doesn't just mean that you were trying to be mean (indeed, you could argue that "actual malice" doesn't require any... um... actual... malice). In this case, the court just can't find any knowledge of falsity -- and thus, no actual malice. [PDF link]

[E]ven then, a defamation complaint by a public figure must allege sufficient particularized facts to support a claim of actual malice by clear and convincing evidence, or the complaint must be dismissed.

Here, as already mentioned, the complaint fails on its face to adequately allege actual malice, because it fails to identify any individual who possessed the requisite knowledge and intent and, instead, attributes it to the Times in general. This will not suffice.

The court also points to the proactive measures taken by the Times to correct the misstatements after they were brought to its attention as evidence of a lack of actual malice. The corrections weren't prompted by a lawsuit or threats of a lawsuit, but rather by readers displeased the Times would make a connection between Palin and Loughner that had never been established.

Even if the Times hadn't made these immediate efforts, the court still would likely have cut the paper as much slack as it could, given the First Amendment implications of the lawsuit.

Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States. In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others. Responsible journals will promptly correct their errors; others will not. But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity.

To entertain the theory the press can be held civilly responsible for swiftly-corrected errors would chill reporting on pretty much anything. To take the press to court is to take the First Amendment to court. A higher standard must be met by plaintiffs.