PRIOR PROFESSORS

NOTEWORTHY -- Professor Lili Levi
(found from footnotes)

Lili Levi, Disinformation and the Defamation Renaissance: A Misleading Promise of “Truth,” 57 U. Rich. L. Rev. 1235 (2023);

independent and principled engagement with issues of public concern by those who hew to journalistic values, such as truth, verification, completeness, investi gation, and context. ...  I also call for a commitment to press self-examination from the vantage point of fundamental journalistic values in a democracy.

p. 91 "...the recent reframing of defamation law as a weapon to combat disinformation. fn54, citing to David Logan...
individual defamation suits are not particularly effective tools to suppress political disinformation in most cases55 and that most journalism today is not in fact “fake news” or disinformation as charged.

"Real 'Fake News' and Fake 'Fake News'", 16 First Amend. L. Rev. 232 (2018)
Professor Lili Levi

"Disinformation and the Defamation Renaissance: A Misleading Promise of Truth"
57 Richmond L. Rev. 1235 (2023)

Defamation law inevitably confronts conflicting commitments to freedom of speech and press on the one hand, and to the interest in reputation on the other. The siren’s call of the new anti-disinfor mation argument is that it recasts the interest in reputation from a personal or even social interest in the dignity and status of the defamed individual to an interest in full, free and truthful public discourse. In the anti-disinformation frame, defamation liability for disinformation advances the very same public goals as the interest in a free and independent press. This value-equivalence im plicitly undermines the Sullivan Court’s argument that the need for “breathing space”fn10 for error in public discourse justifies tilting the balance toward the interests of the press as drivers of public discussion and self-government. By implicitly defining the press almost solely through the dangers its errors pose to the public, the disinformation argument tips the balance completely against the press.

...reasons to be wary of the turn to anti-disinformation to justify defamation law reform. One is that the search for authoritative truth to fight disinformation through defamation litigation is likely to be ineffective and could even amplify the spread of disinformation.13 At a minimum, it is far from clear what audiences will take away from such actions. ... The other reason...anti-disinformation reformers’ assumption—that reversal of the Sullivan protections will likely improve both the press and the processes of democratic self-government—rest on empirically untested and overly optimistic intuitions. To the contrary, weaponizing defamation law would likely have perverse results—deterring coverage by news organizations that aspire to accuracy while simultaneously allowing the social problem of online falsity to worsen through the carelessness of TikTokkers unlikely to be sued.

1262:  One important inflection point that could well affect the ways in which courts other than the Supreme Court deal with defamation cases going forward is the American Law Institute’s (“ALI”) new project revising the Restatement Second of Torts, Defamation.85 Although the ALI’s Restatement cannot itself revise constitutional limits on defamation law, it can foreground jurisdictional varia tions and highlight trends that appear more or less friendly to plaintiffs. Surely the new Restatement will attempt to address how to apply traditional tort principles to social media, artificial intel ligence, and new manipulative technologies.86 To the extent that this new Restatement, when adopted, becomes as influential as the Restatement Second of Torts, any narrowing interpretations of ex isting doctrine reflected in the new Restatement could lead to con stricted applications of common law aspects of the defamation tort as well.  

Tommaso_Venturini_EN-CV.pdf

The Constitution of Knowledge | National Affairs (Jonathan Rauch)  (Brookings)

Video: July 31, 2021 "A Defense of Truth"

Stanford Political Science Professor Bruce Cain

An update on our research into trust, facts and democracy
June 5, 2019 (Michael Dimock)
Pew Research Center

Perma | When local newspapers shrink, fewer people bother to run for mayor » Nieman Journalism Lab
April 9, 2019 Joshua Benton (Nieman Labs)

The U.S. Supreme Court's Characterizations of the Press: An Empirical Study
Sonja R. West and RonNell Anderson Jones, The U.S. Supreme Court's Characterizations of the Press: An Empirical Study ,
100 N.C. L. Rev. 375 (2022),

Sonja R. West, “The Press,” Then & Now, 77 OHIO. ST. L.J. 49, 68–69 (2016)
(the most important “structural role” of the press is for it to be on the lookout for “government malfeasance”).

fn 275: SULLIVAN, supra note 265, at 15 (quoting Tom Rosenstiel, executive director of the American Press Institute: “If we don’t monitor power at the local level, there will be massive abuse of power at the local level”);

FN. 277 Id. at 127–28; accord SULLIVAN, supra note 265, at 20 (“When local news fails, the foundations of democracy weaken. The public, which depends on accurate, factual information in order to make good decisions, suffers.”).

In Memphis, Journalism Can Still Bring Justice, N.Y. TIMES (May 25, 2020), https://www.nytimes.com/ 2020/05/25/opinion/memphis-journalism.html [https://perma.cc/YNN4-NRTY] (“Ethics, fairness, accuracy, social-justice reporting, journalists who hold public officials to account— all of these public goods are harder and harder to come by these days. . . . Such losses are particularly acute in places where no other media outlets are covering news that affects poor residents . . . .”)

fn. 283 -- Constitutional Law in an Age of Alternative Facts
Law Professor Allison Orr Larsen (2018) Wm  & Mary
(noting that “fake news” and “alternative facts” actually “point to the same phenomenon: In today’s political dialogue, we believe what we want to believe. Objective facts—while perhaps always elusive—are now endangered species”).

This danger is exacerbated by the enormous pressure that digital delivery puts on all outlets to publish first and verify later.
fn. 284 -- Logan, All Monica, supra note 149, at 201 (observing the twenty four-hour news cycle prompts journalists to “get the news first and fast rather than first and right”

290 Bobby Chesney & Danielle Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 CALIF. L. REV. 1753, 1776–77, 1783–84 (2019) (identifying risks from “deepfakes,” including “distortion of democratic discourse, manipulation of elections, eroding trust in institutions, exacerbating social divisions, and undermining journalism”).

304 Paul Horwitz, The First Amendment’s Epistemological Problem, 87 WASH. L. REV. 445, 472 (2012) (stating that false claims of fact have “become cascades, gaining adherents at dramatically increased rates and distorting politics, public discussion, and public policy itself”).

fn 309 SOPHIA ROSENFELD, DEMOCRACY AND TRUTH: A SHORT HISTORY 1–2 (2019) (“Truth . . . has been touted as a key democratic value from the get-go. Republics, and, later, modern democracies have long prided themselves on both building on and generating truths . . . .”); Barron, supra note 142, at 101 (“[A] press that lies to the public or negligently publishes falsehoods vitiates its role in facilitating democracy-enhancing speech and thereby harms the populace’s ability to effectively govern itself.”).

The result of all of this is a political system under siege, since modern democracies need to both identify and circulate agreed-upon facts.309 Indeed, as political philosopher Hannah Arendt pointed out decades ago, “[t]he ideal subject of totalitarian rule is not the convinced Nazi or convinced Communist, but people for whom the distinction between fact and fiction . . . and the distinction between true and false . . . no longer exist.”

304 Paul Horwitz, The First Amendment’s Epistemological Problem, 87 WASH. L. REV. 445, 472 (2012) (stating that false claims of fact have “become cascades, gaining adherents at dramatically increased rates and distorting politics, public discussion, and public policy itself”).

 309 SOPHIA ROSENFELD, DEMOCRACY AND TRUTH: A SHORT HISTORY 1–2 (2019) (“Truth . . . has been touted as a key democratic value from the get-go. Republics, and, later, modern democracies have long prided themselves on both building on and generating truths . . . .”); Barron, supra note 142, at 101 (“[A] press that lies to the public or negligently publishes falsehoods vitiates its role in facilitating democracy-enhancing speech and thereby harms the populace’s ability to effectively govern itself.”).

 We can point to many factors that play a role in this crisis, including the spread of post-modern theories about the contingent nature of truth from campuses to the mainstream...

VI. RECONSIDERING NEW YORK TIMES

A functioning, let alone thriving, democracy requires a number of fundamental characteristics that are increasingly elusive in our country: that people are telling the truth most of the time, that truth is distinct from falsehood, and that we can tell the difference.339 These assumptions are not holding up under the assault in our “post-truth” society340 in which many citizens are convinced that there is no such thing as impartial, consensual facts and truth is increasingly being defined as “a matter of subjective feeling and taste.”341

VII. CONCLUSION

When asked what kind of government would result from the Constitutional Convention, Benjamin Franklin presciently replied “a republic . . . if you can keep it.”fn354  Over two hundred years later, we find our republic at a critical juncture, beset by falsehoods and deep mutual distrust....We can also hope for fresh thinking from the American Law Institute’s recently announced “restatement” of defamation law, which provides a unique opportunity to address many of the concerns raised in this Article, as the Institute’s work has often proved influential to courts.fn356 But at the end of the day, decisions of the Supreme Court helped create the mess so it is imperative that the Court be involved in fixing it. This crisis requires the wisdom and courage to reconsider the constitutional icon that is New York Times v. Sullivan. In the meantime, our democracy hangs in the balance.

1287:Even if the judicial system could debunk lies and establish au thoritative truths in the public interest (and would we want it to),209 it is unlikely that defamation actions can actually authorita tively establish the broader truths that anti-disinformation re formers by definition wish to target and combat the harms of sys temic disinformation.210 For one thing, some of the most damaging political disinformation distorting public debate does not defame anyone and cannot satisfy the “of and concerning” standard.

212. Unconcern with falsity is much more likely online, with untrained TikTokers and Facebook groups posting and reposting disinformation. Yet because plaintiffs will rationally avoid suing the nameless and impecunious posters who are likely to be principally respon sible for online disinformation, they will ironically go after news organizations that are less responsible for the deluge of falsity and at least aspire to comply with journalistic norms of accuracy.

1296  To the extent that the goal is to shake the audience’s belief in harmful disinformation, is it likely that the results of a defamation action will in fact influence the audience’s beliefs about controver sial political and cultural issues? At a minimum, this is an as-yet untested empirical issue.

Falsehoods and the First Amendment, Harvard Journal of Law & Technology
Vol 33, No. 2, Spring 2020 (Cass Sunstein)

LIBERTY FUND
Law & Liberty
Further Thoughts on New York Times v. Sullivan – Law & Liberty Editors -- Nov-Dec 2024

N.Y. Civil Rights Law Section 70-A – Actions involving public petition and participation (2026)

J. Erik Connolly

Samantha Barbas | College of Law - The University of Iowa

The Press and Libel Before New York Times v. Sullivan, 44 COLUM. J.L. & ARTS 511, 514 (2021).

Protect Democracy - It can happen here. We can stop it.

Uncommon Law: The Past, Present and Future of Libel Law in a Time of Fake News and Enemies of the American People
Professor Jane Kirtley
Libel Law in a Time of “Fake News” and “Enemies of the American People” | Hubbard School of Journalism

New York Times v. Sullivan: The Case for Preserving an Essential Precedent - Media Law Resource Center (March 2022)

1306:  The reactions of the traditional press to revelations of error are instructive. News organizations and reporters have journalism ethics codes and media corrections policies.287 Examples such as 280. Ballard Spahr, supra note 105, at 166. 281. Harte-Hanks Commc’ns v. Connaughton, 491 U.S. 657 (1989). 282. Herbert v. Lando, 441 U.S. 153 (1979). 283. Ballard Spahr, supra note 105, at 166. 284. Id. 285. See, e,g., Richard Tofel & Jeremy Kutner, Chapter 2: A Response to Justice Gorsuch, in 2022 MLRC WHITE PAPER, at 79. 286. Id. at 82–83 (noting increased incentives to the production of quality journalism in order to maintain high subscription numbers). 287. News organizations have corrections policies and professional journalism associations articulate ethics norms that foreground accuracy and corrections of error. See, e.g., Corrections, ONAETHICS, https://ethics.journalists.org/topics/corrections/ [https://perm a.cc/6BYH-JUPV]; The Elements of Journalism, AM. PRESS INST., https://www.american pressinstitute.org/journalism-essentials/what-is-journalism/elements-journalism/ [https:// perma.cc/2KU6-9QYQ]; SPJ Code of Ethics, SOC’Y OF PRO. JOURNALISTS, https://www. spj.org/ethicscode.asp [https://perma.cc/C9A9-APBF]. Although there are doubtless many instances when these norms are aspirational only, particularly when the issue is not brought to the attention of the national audience, their public articulation is notable, as are high-profile instances evidencing compliance. For an account of the professionalization of 1306 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 57:1235 The New York Times immediately pulling the piece that sparked the Palin suit are typical.288 The facts of current cases such as Eramo v. Rolling Stone provide a playbook for the rest of the media on what to avoid.289 All this supports the mainstream press’s artic ulated commitment to accurate reporting and timely correction of error. Of course, it would be naive to say that the mainstream press never disseminates inaccurate information, forwards manipulated or conspiracist information, or otherwise amplifies false and harm ful narratives about matters of public interest. But accuracy and correction are important to journalistic ethics and imperfect com pliance should not negate their significance as professional norms to which mainstream journalists aspire. 290 It would be ironic, then, if anti-disinformation cases were to be brought against news or ganizations whose professional commitments emphasize journal istic norms at least aspirationally.291

The Enduring Significance of New York Times Co. v. Sullivan | Knight First Amendment Institute
Samantha Barbas
"The history of Sullivan demonstrates how, when provided with sufficient constitutional protections, the press embodies key democracy-enhancing roles, such as reporting on public affairs, transmitting newsworthy information to the public, monitoring the conduct of public officials, and holding officials accountable to the citizenry." 

"Sullivan facilitated a sea change in journalism, permitting the press to fulfill its constitutional function of reporting on public affairs without fear of devastating libel judgments. 

If today’s opponents of Sullivan and related cases succeed, it would become substantially riskier for speakers, including the press, to comment on public affairs. Without the protections of Sullivan, the press would be greatly limited in its ability to engage in its “watchdog” function, monitoring the conduct of public officials and holding them accountable to their constituents. A rollback of Sullivan, moreover, could herald a return to the “libel warfare” that existed before 1964. As the Sullivan story suggests, fewer protections for speakers in libel law would undermine the ability of the press and citizens to engage in the “uninhibited, robust, and wide-open” discourse that is central to public deliberation in a democratic society. The Supreme Court in 1964, and the American public more broadly, saw how libel law could be used to persecute critics of the status quo speaking out on behalf of social justice—persecution that could easily occur today in the absence of Sullivan’s protections. Sullivan changed the course of history, and in our contentious times, its protections matter more than ever.

congress.gov/111/plaws/publ223/PLAW-111publ223.htm

Nov 27, 2012 interview of Scalia by Charilie Rose

"To support this inflammatory hypothesis — that journalists would knowingly publish questionable information, because the act of trying to determine its accuracy would expose them to liability — Logan provided no evidence or examples. Had he spoken to a single reporter, editor, publisher, media executive or practicing First Amendment lawyer to ascertain whether there was even a kernel of truth to his theory? He told me that he had not. His argument, he said, was based on logic. “It was the product of an academic doing his research,” he explained when I pushed him on this. “We don’t actually road-test” theories with people who have real-world experience, he added, noting that this was why the academy was often referred to as the “ivory tower.”