The Right-Wing War on Free Speech Could Backfire

Progressives aren’t the only ones who need free-speech protections.

A gavel striking a speech bubble
Getty; The Atlantic

Updated at 11:50 a.m. ET on September 7, 2022

Fox News is in legal trouble. The media giant is facing lawsuits from two voting-machine companies over segments it aired with Donald Trump surrogates parroting the former president’s made-up allegations that the 2020 presidential election had been thrown by compromised voting machines—insinuations that Trump’s own advisers told him did not hold water.

Defending their client, Fox News’s attorneys have relied heavily on free-speech doctrines established by the 1964 landmark Supreme Court case New York Times v. Sullivan—specifically, the standard of “actual malice.” This standard says that when it comes to public figures, a speaker must know their statements are false or display “reckless disregard” for whether the statements are true in order to meet the requirement for defamation. In that particular case, the Montgomery, Alabama, public-safety commissioner, L. B. Sullivan, sued The New York Times over an ad it had published calling for donations on behalf of the civil-rights leader Martin Luther King Jr. Although the ad made some factual errors regarding the police department Sullivan oversaw, the Court ruled that the Times was not liable, because the purpose of the First Amendment was to guarantee that “debate on public issues should be uninhibited, robust, and wide-open,” and that such debate “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

This standard has protected the right of Americans of all political persuasions to make absurd, hyperbolic, and sometimes even false statements about their political leaders. This is how it should be. The bar is not unreachable, but it is justifiably high in order to protect public criticism of powerful people. Following former President Trump’s calls to “open up our libel laws,” gutting the free-speech protections of Times v. Sullivan has become a right-wing cause, presumably because some conservatives imagine that the “fake-news liberal media” will be swiftly bankrupted for saying mean things about the smart and handsome Mr. Trump. But the Fox News lawsuits show that conservatives’ enthusiasm for gutting Times v. Sullivan would leave right-wing media outlets more vulnerable than perhaps they appreciate.

In a dissent last year, the conservative federal judge Laurence Silberman called for Times v. Sullivan to be overturned, complaining that the Times and The Washington Post “are virtually Democratic Party broadsheets” and adding that “nearly all television—network and cable—is a Democratic Party trumpet.” This is false, but even if it were true, one strains to see what relation it has to defamation law. Like most frustrated news consumers, Silberman’s complaints regarding the mainstream press are about framing, emphasis, and story selection—not facts.

Silberman’s position is nevertheless shared by some very powerful people. Three years ago, Justice Clarence Thomas wrote in a concurring opinion that the Supreme Court should overturn New York Times v. Sullivan and rethink the actual-malice standard. That case was a particularly compelling one for his point: It involved a woman who had sued Bill Cosby for libel after the disgraced comedian’s lawyer accused her of lying about being assaulted by Cosby. The Court declined to take the case, leaving in place a lower-court decision in Cosby’s favor on the grounds that the plaintiff had become a “limited-purpose public figure”—a term describing an otherwise private citizen who finds themselves at the center of a public controversy—and that the attorney’s statements therefore did not meet the actual-malice standard.

New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Thomas wrote. “If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.”

In a 2021 case, Thomas reiterated his call for Times v. Sullivan to be overturned and was joined by Justice Neil Gorsuch, who lamented the spread of disinformation on social media and argued that if the actual-malice standard “had force in a world with comparatively few platforms for speech, it’s less obvious what force it has in a world in which everyone carries a soapbox in their hands.” It’s always interesting to see which contemporary developments originalists decide are relevant to their constitutional interpretations.

Thomas’s and Gorsuch’s arguments are more compelling and sophisticated than Silberman’s, but it’s also clear that Silberman is closer to the mainstream conservative view on the subject, which is that Times v. Sullivan should be overturned in order to discipline the liberal media.

“The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace,” Silberman wrote. “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.” Again, this is an editorial, not legal, analysis, an expression of desire to punish the press for its misbehavior—a rather ironic frame for a so-called defense of free speech. None of Silberman’s concerns, to the extent you take them seriously, would be addressed by overturning Times v. Sullivan—diverging ideological interpretations of the same facts would persist without a stronger liability shield. In Britain, where there is no actual-malice standard, major media outlets are widely considered to be more explicitly aligned by ideology and hardly free of distortions.

The irony of Trump’s complaints about the permissiveness of American libel law, and right-wing jurists’ support for gutting the actual-malice standard, is that many conservative media outlets would suffer without it—perhaps more than the mainstream press outlets they hope to bring down. Those institutions would survive. But all the right-wing shitposters calling for the media’s downfall? Might not be so great for them.

The loss of the concept of a “limited-purpose public figure” would make things very hard for outlets and personalities who thrive on finding new targets for opprobrium. Beyond the legal trouble facing Fox News, the parents of a child murdered in the Sandy Hook massacre recently successfully sued Alex Jones, the far-right proprietor of Infowars who counts Trump among his admirers, after he alleged that the incident was a “false flag” operation orchestrated by the government. The verdict was taken in conservative circles as an attack on free speech, notwithstanding the insistence that it should be easier to sue the media for saying things that are false. In 2020, a federal judge dismissed a defamation lawsuit against the Fox News host Tucker Carlson filed by a woman who claimed to have had an affair with Trump. Carlson accused her of “extortion” on his show, but the judge dismissed the suit on the grounds that the host is “not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.’”

The actual-malice standard has enabled the creation of an alternate universe of conspiratorial disinformation about political figures conservatives oppose—such as the birther myths around Barack Obama and the dark, elaborate fantasies concocted about the Clintons. In plain English, conservative media have gotten used to being able to say outrageous things without any adverse legal consequences and have built devoted audiences under the umbrella of this protection. Tens of millions of Americans trust and believe the things they hear from these outlets, viewing nonconservative media sources as untrustworthy. These outlets have abused that trust by consciously misleading the population about serious matters, such as the risks of the coronavirus pandemic and the origins of the Capitol riot. Again, this is their First Amendment right, however infuriating their conduct might be.

Even with the current high standard, some—such as Jones—still face legal consequences for their actions. But without that standard, conservative outlets that engage in similar conduct would be much more likely to face legal threats. On the other hand, if Britain offers any example, mainstream media outlets such as The New York Times and The Washington Post would survive Times v. Sullivan’s demise. These organizations can afford strong legal representation and, crucially, maintain much stricter rules about what they publish. That does not make them infallible or above criticism, and it doesn’t mean that they never make libelous errors. But their institutional standards ensure that the overwhelming majority of the time, their coverage is rooted in facts. Many of their detractors in the right-wing press are much more reliant on, to use a technical term, bullshit.

Overturning Times v. Sullivan would undoubtedly have a chilling effect on free speech. We can infer this simply from the era before Times v. Sullivan, during which public officials—many of them segregationists—used libel law to stifle criticism of their official conduct, a practice that weighed heavily on the unanimous majority in Sullivan. Fox Corporation’s chief executive is suing an outlet in Australia that has been critical of the network’s coverage of the 2020 election, taking advantage of the absence of speech protections it is eagerly availing itself of in the United States. This is how good legal representation works, but it also reflects an approach to free speech that is more mercenary than principled.

Even if they were unsuccessful in intimidating large outlets such as the Times or the Post, wealthy and powerful people would likely find it much simpler to use the threat of litigation to silence those without deep pockets or institutional support. It would be little trouble to target the average person shooting their mouth off on social media, but the media outlets that conservatives hate would continue to exist and continue to cover public affairs in a way they disapprove of—that is, without sounding like the Trump advisers at Fox News.

Without the actual-malice standard, the strong would likely find it easier to silence the weak. It is not hard to understand why the justices, powerful people who are frequently subject to withering public criticism, might be sympathetic to that outcome. But conservatives who believe that the end of the actual-malice standard would fatally injure the mainstream outlets they loathe should probably be careful what they wish for.

This article originally misidentified the entity whose chief executive is suing an outlet in Australia.