Defamation Is Having A Moment; But Beware The Influx Of Bad Cases

Defamation cases are having quite a moment. The threat of a likely loss in a big defamation suit resulted in Fox News settling for $787 million just as trial was set to begin in the Dominion case, And then, this week, we saw E. Jean Carroll win her defamation (and sexual abuse) lawsuit against Donald Trump, with a jury awarding her $5 million.

There is some irony here in that Donald Trump, somewhat famously, once promised to “open up our libel laws” so that he could more readily sue news organizations, and yet now he’s on the losing side of a defamation case. Similarly, the Republican Party (which Fox News represents as its established mouthpiece) has been agitating to get rid of the NY Times v. Sullivan precedent, to make it even easier to sue for defamation. Ron DeSantis, Sarah Palin, Devin Nunes, Clarence Thomas, and more have all argued that there should be more defamation cases, and lower barriers for the rich and powerful to sue those who criticize them, even as Trump and Fox News are now on the losing end of such cases, even with NYT v. Sullivan in place.

This leaves me with a few thoughts worth thinking through. First, the end result of both of these cases suggests that the NYT v. Sullivan standard works just fine (and should be encoded into law by Congress). One of the arguments frequently brought up by those looking to take away NYT v. Sullivan is that it makes it “effectively impossible” to win a defamation case under the actual malice standard. That’s never been true, but the events of the last few weeks should put an exclamation point on why. Actual malice is a high bar, but a reasonable and important high bar, because it means that only legitimate defamation cases can get through.

If someone deliberately lied and defamed you, you can still win a case by showing actual malice (again, this does not mean that you really disliked the person, but rather that you knew it was false when you said it, or that you proactively chose to avoid facts that would show it was false). That’s reasonable. If someone is deliberately and knowingly making up defamatory statements about you, then defamation law should work.

The issue is that the rich and the powerful don’t just want to silence the (relatively rare) cases of deliberately making up things about someone. They want to silence the truthful stories that embarrass them, and they see defamation law as a tool to do so, often focusing in on an inconsequential error or a difference of opinion (when only false statements of fact, not differences of opinion can be defamatory).

The second thing this brings up though: I do fear that the high profile nature of these two cases are going to lead a lot more people to think that defamation cases are easy to win. And while I mostly highlight stories of the powerful abusing defamation law to silence criticism or embarrassing content, I worry that people with legitimate gripes about unfair treatment, will look at these cases, and think it provides them with an avenue to get back via defamation law.

I’ve been hearing more and more from people who are being targeted by trolls and idiots with nonsense campaigns against them, and I can understand how frustrated they get, but I worry that defamation lawsuits, should they pursue them, will lead to a lot more trouble. Despite the “wins” in the cases above, it is still hard to show actual malice (we’ve already explained why that’s a good thing} and many of the trolls may honestly believe their nonsense is true, rather than deliberately making false statements.

And, such lawsuits may only serve to empower the trolls and idiots, in that they will get to claim that the target of their trolling is trying to “silence” them and suppress their speech. Even worse, should these cases lose (and, they might) then it will allow the trolls to claim vindication, and even (misleadingly, but they don’t care) argue that the court found their trolling to be “truthful.”

So, I fully expect an influx of… well… weaker defamation cases, some of which may be brought in good faith, but which won’t go well. Of course, should the GOP succeed in undermining the “actual malice” standard, there will be an even bigger flood of such cases, and not all of them will be brought in good faith. Indeed, many will likely be brought in bad faith.

To me, the final takeaway from this should be that our current defamation law standards do work. They represent a high bar, but for a good reason, and it is possible to get over that high bar in egregious cases. But not all cases are egregious, and I fear that many will get the wrong message from the success that Dominion and E. Jean Carroll have had over the last few weeks.