Commentary
Presidential hopeful Ron DeSantis presents himself as a serious, pro-business, anti-woke, and conservative alternative to both former President Donald Trump and current President, Joe Biden.
Controversially, DeSantis is reportedly pro-big-conservative government—looking for ways to protect the little guy from institutional elites often more concerned about making money in China, for example, than the future of democracy here at home.
Conservative use of the government for conservative ends rubs some traditional small-government conservatives the wrong way. But the conservative movement has changed since 2016, when Trump won his watershed Republican nomination, and “baby Trump” is riding that wave—and likely into the upcoming Republican primaries.
One of DeSantis’ new conservative initiatives revolves around stronger protections for individuals against defamation by what he calls the “smear merchants” of mainstream media. He pushes back against claims that he supports big government by, for example, presenting his anti-defamation initiative as enabling individuals to seek redress for wrongs through private right of action rather than government regulation.
Last month, DeSantis hosted a roundtable discussion on “legacy media defamation practices.” During an hour with alleged victims, experts, and a self-described “annoying libertarian journalist” who worked for “various left-wing news organizations,” DeSantis demonstrated respect of alternative opinions, nuance regarding legal arguments, and consideration of both victims’ rights and getting out the “truth”—a word emblazoned behind the panel in a misleadingly Orwellian fashion.
In attempting to find the right balance between defamation protections and freedom, DeSantis must have known the press would attack him, and indeed the left-leaning press, including The New York Times and Washington Press, did so. While Fox has addressed both sides of the issue, in part because it is the defendant in a related defamation case, The Wall Street Journal has likely shown its disapproval of DeSantis’ initiative by remaining largely silent.
So, picking up the defamation issue is not exactly geared to DeSantis’ political advantage. It appears instead to be born of sincere concern and political courage, so the press should take it seriously rather than dismiss it in a shrill and self-serving manner.
At the roundtable, the Governor highlighted three cases that allegedly illustrate how the mainstream press victimizes people.
Nicholas Sandmann was a 16-year-old high school student in 2019 when the press allegedly reported one side of a story that went viral, hurting the student’s reputation and college prospects, he said. Sandman filed suit against multiple outlets, with CNN, NBC, and The Washington Post settling out of court. However, a federal judge later threw out his case against The New York Times, ABC, CBS, Gannett, and Rolling Stone. Their reporting was a “protected opinion,” she ruled.
Another case involved several pro-Second Amendment individuals from the Virginia Citizens Defense League, who claimed that journalist and presenter Katie Couric edited their responses to a tough question—thus giving the impression that the VCDL’s participants were unable to formulate an answer. In fact, the participants answered the question, but their answers were allegedly edited out and replaced with footage of them sitting quietly before the questions had started. According to a VCDL member at the roundtable, the League’s defamation case failed because the court ruled that the editing was neither false nor misleading.
A third case targeted CNN for claiming that Zachary Young was part of a “black market” ready to “take advantage” of Afghans desperate to leave the country after the fall of Kabul. His lawyer argues, however, that Young legally helped corporations and charities—including Audible and Bloomberg—to extract Afghans whom they had sponsored. CNN issued a correction that said its use of the term “black market” was in error. However, the damage was already done to Young’s business, his lawyer argues.
All three cases fit a modern media trend to subtly (or not so subtly) skew the facts to confirm and excite the known biases of viewers. Rachel Maddow of MSNBC and Tucker Carlson of Fox News are arguably the most skillful maestros of this entertaining but polarizing technique. Their viewerships are massive as a result.
DeSantis reportedly supports two bills in the Florida legislature that would make it easier for victims of defamation to sue. The Senate version entails less change to existing laws, but is still seen as dangerous to press freedoms by most commentators.
The bills could force bloggers, for example, to register with the government—as lobbyists do. The law would treat information from anonymous sources as presumptively false, and make suits easier by allowing plaintiffs to recover attorney’s fees.
With current laws, suing for defamation is much easier for wealthy individuals who can afford to pay lawyers than it is for the less well-off. Since the 1964 Supreme Court ruling in New York Times Company v. Sullivan, however, the higher bar of “actual malice” required to prove defamation in the case of a public figure has protected journalists who make honest—rather than purposeful—mistakes.
Supreme Court Justice Neil Gorsuch argued in 2021 that the 1964 decision allowed occasional errors to protect a free press, but “has evolved into an ironclad subsidy for the publication of falsehoods by any means and on a scale previously unimaginable.”
The new Florida bills would likely be challenged and go to the U.S. Supreme Court, where they could be used by the new conservative majority to overturn New York Times Co. v. Sullivan as it overturned Roe v. Wade.
While some commentators have called the Florida bills “unconstitutional,” Carson Holloway, a Fellow at the Claremont Institute, said on the panel that the founders of the nation had a simpler understanding of libel and defamation that was more “morally sound” than the practice resulting from the Warren court of the 1960s.
“They didn’t have any theory that public figures have to demonstrate anything different than anyone else,” he said. “They didn’t have a theory of actual malice. They had a simple theory which was that libel or defamation is not part of freedom of the press.”
Before 1964, U.S. defamation law more closely approximated the common law the United States inherited from England. That put stronger guardrails on what the press could claim as the truth to get new readers and higher profits.
Today the press “thinks with dollar signs,” said Libby Locke, a libel lawyer who participated on the panel. Economic consequences through private action for “lying about targets for reporting … to get ratings and to sell ads” will make the press accountable to their shareholders and insurers, she said. “The money speaks.”
Weak defamation laws in the United States compared to Britain and Europe could be contributing to the greater political partisanship of the American press. Media entities in the United States have more leeway to claim to have made an honest mistake when, in fact, they are taking advantage of a loophole to amplify partisan claims beyond the truth in a manner that excites their viewers and confirms their political biases. When both sides present in this way to already partisan viewers, they attract more attention through shock value and click-bait but, at the same time, increase polarization.
On the other hand, Seth Stern, Director of Advocacy for the Freedom of the Press Foundation, assembles the conservative arguments against the Florida bills. He writes that “expanding defamation liability … would cause the most harm not to mainstream media outlets that can afford lawyers but to independent news outlets and opinionated individuals, including conservatives, who cannot.”
Whatever side of the debate one adheres to, the Florida bills could be hugely consequential for the balance between protecting victims from defamation and protecting press freedom. The American public deserves a non-partisan discussion of both sides of the issue. Don’t expect to get them in this media environment.
