March 10, 2023
"What if New York Times v. Sullivan is Next?
The Future of Journalism and Defamation Law"

Missouri Law Review Symposium 2023: Law Panel

MODERATOR: Missouri Law School Profess Ryan Snyder
PANELISTS:
Alexandra Gutierrez, Esq.
Amy Sanders -- Law Professor 
Matt Schafer -- Adjunct Law Professor

Missouri Law Review Symposium 2023: Journalism Panel

MODERATOR: Frank LoMonte | Counsel, CNN
PANELISTS:
Lieta Walker, Esq./Ballard Spahr LLP
Eriq Gardner, Founding Partner and National Correspondent, Puck
Rod Hicks, Director of Ethics and Diversity, Society of Professional Journalists

Missouri Law Review Symposium 2023 -- keynote Lidsky

Missouri Law Review Symposium 2023: Social Media Panel

Missouri Law Review | Vol 88 | Iss 3

Untangling Defamation Law: Guideposts for Reform 88 Mo. L. Rev. 663 (2023);
here 673: "...defamation simply does not cover most of the lies, conspiracy theories, and hoaxes
that pollute public discourse.

678: the only kind of disinformation that defamation law can reach is disinformation about individuals that is both untrue and implies the assertion of facts. In other words, the information must be both false and of a factual nature in order to be actionable. Defamation law simply cannot address the main sources or types of disinformation; to the extent it polices truth within public discourse, it does so only at the margins, by reminding some actors, sometimes, that falsity occasionally has consequences.

Defamation law is far more successful when it comes to fostering robust coverage of public officials and public figures. In New York Times v. Sullivan, the Supreme Court protected the news media from defamation liability despite the fact they made trivial errors in their coverage of unjust treatment of Dr. Martin Luther King, Jr., and other civil rights activists by Alabama police and public officials. The Court recognized the important watchdog role played by the New York Times and other media outlets during the Civil Rights Movement, and the Court also recognized that plaintiff L.B Sullivan and other public officials were attempting to use defamation law to defang that watchdog. The actual malice rule adopted by the Court enables the media to exercise a checking function on government malfeasance by giving the U.S. media more freedom than the media in any other place in the world to publish information about presidents, governors, congressional leaders, city commissioners, judges, and other influential public officials. The media covers consequential matters concerning public officials, and inconsequential ones, too, without seeming unduly timorous. The Supreme Court’s extension of Sullivan’s actual malice rule to public figures also helps protect media when they publish newsworthy information about celebrities, businesspeople, and other so-called “influencers.” Unfortunately, coverage of the powerful and prominent seems less robust at local levels, but economics seem to be responsible for that deficit, rather than the law itself. Sullivan recognized that the media needs “breathing space” for the “inevitable errors” they make in reporting newsworthy events. Without that breathing space, the media—especially those segments that are most economically vulnerable—might be unduly cautious in performing their watchdog role.

679-80: One barrier to reform via tort law is the inherent incrementalism of the common law. Revolutionary changes in communications may justify holistic reforms, but tort law is constrained by precedent and the requirement of adjudicating individual cases. Tort law is simply not a vehicle for comprehensive, revolutionary reform. It is, however, a vehicle for careful, step-by-step adaptation of underlying principles to changed circumstances. However, tort law is barred from making some of those adaptations at present by the First Amendment limitations imposed on defamation law. Sullivan and its progeny have effected a sort of practical preemption of common law reform. The constitutional law creates a floor that neither tort law nor statutory law can go below. Tort law and statutory law can provide more protection for free expression than First Amendment principles dictate, but states cannot provide less. Thus, the enmeshed Gordian Knot of laws that comprises defamation is itself a barrier to comprehensive re-examination of whether defamation law is serving its intended purposes, and there’s no way to recalibrate the balance between reputation and free expression without attacking all strands of the knot at once. Jettisoning actual malice will upset the balance, certainly, but it is unlikely to deliver a significant quantum of more responsible and reliable journalism

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Lyrissa Lidsky, Cheap Speech and the Gordian Knot of Defamation Reform,
3 J. Free Sp. Law 79 (2023)
93:  Let’s start with the good news. One value that today’s defamation law attempts to serve is to encourage media to perform their watchdog role by providing robust coverage of public officials and public figures. By that standard, media in the U.S., including our newspapers and broadcasters, have more scope and license to cover and criticize public figures and public officials than any other media in the world. We can see the effects of these robust First Amendment protections in the intense coverage of presidents, congressional leaders, judges, and other influential public officials. It occasionally seems as though no personal predilection of our public of ficials is too inconsequential to escape notice. It is especially remarkable that the media continue to intensively cover now-former President Trump, despite his long-standing propensity to bring defamation lawsuits against those who criticize him. We also see the effects of First Amendment doctrines that protect newsworthy information about public figures in the spotlight the media shine on celebrities, businesspeople, and other so-called “influencers.” Concededly, coverage is less ro bust at local levels, but that appears to be a product of economics, not law. Even so, whether Sullivan’s actual-malice rule is essential to enabling the press to play their watchdog role is hard to know, but it stands to reason that being absolved of liability for inevitable human error and simple negligence might aid the vigor with which the press pursues the powerful."

Dec 2024
Sullivan and the Central Meaning of the First Amendment – Lee Levine & Matthew Schafer

Revisiting Rosenbloom: Can A Return to the Matter of Public Concern Standard
in Defamation Cases Quiet Sullivan's Skeptics? (Amy Kristin Sanders)

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