First Amendment News

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The rebirth of defamation law: In the ‘Dominion’ of ‘Infowars’ . . . and beyond — FAN 349

Jeremy Peters: "The lawyers and First Amendment scholars who have made it their life’s work to defend the well-established but newly threatened constitutional protections for journalists don’t usually root for the media to lose in court. But that’s what is happening with a series of recent defamation lawsuits against right-wing outlets that legal experts say could be the most significant libel litigation in recent memory." (The New York Times)

August 10, 2022

Authors of First Amendment casebooks take heed: Be prepared to revise those sections of your books that deal with the law of defamation. This is not only because of the clarion calls issued by Justices Clarence Thomas and Neil Gorsuch, but also because of the number and character of the suits being brought against media outlets and others. There seems to be a change in the legal climate when it comes to certain kinds of defamation and First Amendment defenses. See for example:

Summer vacation notice: FAN will return in September.


Introduction: What explains all of this?

In an earlier FAN post, I asked three noted First Amendment experts for their opinions in response to that question. Here is what they said:

Lee LevineLee Levine

Lee Levine:

There are two very different phenomena at play here. Although both of them can fairly be traced to Donald Trump. First, ever since he descended the golden escalator, there has been, at least on the right, a reinvigoration of the use of libel suits by public officials and public figures as a tool to “open up the libel laws” and fight back against what Trump labeled “fake news” disseminated by responsible media (aka “enemies of the people”). His own threats of libel suits, as well as those actually filed by his family, campaign, etc., effectively opened the door for the likes of Sarah Palin, Devin Nunes, Justin Fairfax, and others to disavow the conventional wisdom that public officials had nothing to gain by suing the media.

Second, Trump legitimized lying as a political tool at least in some circles. Ironically, this has emboldened certain public figures, especially those who can find an audience either on social media or right-wing “news” outlets, to propagate or otherwise pass long defamatory falsehoods. And that, in turn, has led to lawsuits and threatened lawsuits against the likes of Sidney Powell and Rudy Giuliani.

Stephen SolomonProf. Stephen Solomon

Stephen Solomon:

The avalanche of defamation suits seems to be a fallout of our fractious political culture, another measure of where we are now. On one end of the spectrum, we’ve had four years of unceasing attacks against the press and some of these lawsuits appear to fit there. They are filed on such insubstantial grounds that they seem aimed to rally the politically faithful and deter critical coverage or make it more expensive.

Another source of defamation suits reflect a related phenomenon, the attack on truth. They arise from the blatantly false conspiracy theories circulating today and made more powerful by social media and internet echo chambers. Some of these false assertions have damaged private and public reputations—such as the election fraud falsehoods and the denials that the Sandy Hook massacres occurred. These are very substantial cases that could potentially meet the stringent actual malice standards of NYT v. Sullivan.

Dean Erwin ChemerinskyDean Erwin Chemerinsky

Erwin Chemerinsky:

There clearly has been a significant increase in defamation suits by and against public officials and public figures. Some seem quite frivolous and are likely just efforts to use litigation to make a political point. Some are a result of Donald Trump and his rhetoric.

I also think [that much of this] reflects the tremendous growth of media where defamatory things can be said and the lack of Supreme Court decisions about defamation for a long time.

The defamation suits: A sampling 

Other cases

See generally

Related

Experts weigh in: The Alex Jones disinformation wars 

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Infowars host and conspiracy theorist Alex Jones dominated the news last week as an Austin jury decided that Jones must pay damages to parents Neil Heslin and Scarlett Lewis for years of broadcasting lies about what happened at Sandy Hook, where their six-year-old son Jesse was murdered. The jury awarded $4.1 million in compensatory damages and another $45.2 million in punitive damages.

Due to a Texas law capping the amount juries can decide in punitive awards, the total amount owed, $49.3 million, is likely to be reduced on appeal. But this case is steeped in the broader issues regarding the legal state-of-play of disinformation and the First Amendment. First Amendment Watch asked notable and thoughtful media legal scholars to reveal what this outcome reveals and portends for other Sandy Hook families who filed defamation suits, another in Texas and the third in Connecticut, slated to start next month. Media and legal scholars George Freeman, Lyrissa Lidsky, Lynn Oberlander and Timothy Zick weigh in.

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Experts weigh in: The Dominion defamation suit against Trump 

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Among many significant revelations coming out of the hearings of the January 6 select committee is information concerning Dominion Voting Systems. Former senior U.S. officials testified that they privately informed former President Donald Trump that allegations against Dominion had no merit and so did an internal Trump campaign report, yet Trump continued to make such statements against Dominion in public.

Dominion has brought defamation lawsuits totaling well over a billion dollars against Trump associates — but not Donald Trump himself, or at least not yet.

I asked leading legal experts about the potential strength of Dominion bringing a defamation suit against the former president. I asked each of them independently. Their responses are below in full.

Commentators

  • Floyd Abrams (“Assuming that there is no immunity for Mr. Trump for statements he made while President, Dominion would have an extremely powerful libel case against him.”)
  • John Goldberg (“a suit against Mr. Trump is unlikely to succeed. This is mainly because the Supreme Court in Nixon v. Fitzgerald (1982)”)
  • Roy Gutterman (“Even if there are numerous examples of false statements and ample evidence of falsity, which there might well be here, suing a former or sitting president for defamation, honestly, does not seem practical.”)
  • Lyrissa Lidsky (“Dominion would potentially have a strong case against the former President for making defamatory and false statements about them with reckless disregard for the truth, though the ultimate success of that case might depend on a jury’s evaluation of witness credibility.”)
  • Ciara Torres-Spelliscy (“Dominion would have a robust defamation case against the ex-president.”)
  • Zahr K. Said (“Dominion could have a very strong case if it sued Mr. Trump for defamation.”)
  • David Schulz (“Based on the public record, Dominion has a very strong case for defamation against Mr. Trump, with one potentially significant impediment.”)

Delaware ACLU to represent plaintiff in license plate case

→ UPDATE: “Court Declares Ban on “Offensive” Vanity Plates Unconstitutional” (Aug. 10)

The ACLU of Delaware announced today that it has stepped in to represent Kari Lynn Overington, whose vanity license plate “FCANCER” was recalled by the Delaware Department of Motor Vehicles. Ms. Overington’s lawsuit is currently pending in the Federal District Court of Delaware and challenges the Delaware DMV’s decision as censorship of her First Amendment rights to speech and expression.

FCANCER licence plate
“As a cancer survivor, the fight to end cancer is extremely personal to me,” said Ms. Overington. “I was shocked when the DMV recalled my license plate because fighting cancer in our communities is imperative, and a message I assumed everyone would embrace.”

“Before my license plate was recalled, I received encouragement from other cancer survivors, family members of those lost to cancer, and many other community members. My license plate was an important message to others like me whose lives have been touched by cancer: that you are not alone. As my license plate declared that we have to fight cancer, I will also fight to make sure I can continue to provide that message to my community,” continued Overington.

ACLU lawyer Dwayne J. BensingACLU lawyer Dwayne J. Bensing

In December 2020, Ms. Overington applied for the vanity license plate and received it in the mail two months later. However, in June 2021, she received a letter from the Delaware DMV that they were recalling the license plate because it “does not represent the division or the state in a positive manner.” Over the course of several weeks, she attempted to advocate with state officials to allow her to continue to use the FCANCER license plate, but to no avail.

Without an attorney, she filed a lawsuit in federal district court in 2021, and recently the judge rejected the state’s motion to dismiss the case citing that it raised a “significant constitutional issue.”

“Delaware permits its citizens to express themselves through vanity license plates,” said ACLU of Delaware Legal Director Dwayne J. Bensing. “This case underscores the problems in the Delaware DMV’s current review process, which is subjective and has now led to censorship of protected speech.”

Erica Goldberg on book banning 

Prof. Erica GoldbergProf. Erica Goldberg

Efforts to ban books from school curricula, remove books from libraries, and keep lists of books that some find inappropriate for students are increasing as Americans become more polarized in their views.

These types of actions are being called “book banning.” They are also often labeled “censorship.”

But the concept of censorship, as well as legal protections against it, are often highly misunderstood.

On the right side of the political spectrum, where much of the book banning is happening, bans are taking the form of school boards removing books from class curricula.

Politicians have also proposed legislation banning books that are what some legislators and parents consider too mature for school-age readers, such as “All Boys Aren’t Blue,” which explores queer themes and topics of consent. Nobel Prize-winning author Toni Morrison’s classic “The Bluest Eye,” which includes themes of rape and incest, is also a frequent target.

In some cases, politicians have proposed criminal prosecutions of librarians in public schools and libraries for keeping such books in circulation.

Most books targeted for banning in 2021, says the American Library Association, “were by or about Black or LGBTQIA+ persons.” State legislators have also targeted books that they believe make students feel guilt or anguish based on their race or imply that students of any race or gender are inherently bigoted.

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2021-2022 SCOTUS term: Free expression & related cases

Cases decided

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This article is part of First Amendment News, an editorially independent publication edited by Professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. Opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Professor Collins.