Justice Neil Gorsuch was half-right: The internet has changed things. Our media landscape—networked, around-the-clock, largely online—has certainly “shifted in ways few could have foreseen.” Lies abound, misinformation flourishes. But meaningfully addressing those challenges will have very little to do with Sullivan’s actual malice standard.
Let’s identify the harm. To Justice Gorsuch, the concern is that our “new media environment … facilitates the spread of disinformation,” and results in “falsehoods in quantities no one could have envisioned almost 60 years ago.” Justice Clarence Thomas is similarly troubled by the “proliferation of falsehoods.” Both appear focused not on the existence of falsehoods—which of course have always existed—but their quantity and how quickly they spread. Any intervention, including a dramatic change to a constitutional standard, should speak specifically to that concern.
Both Justices Gorsuch and Thomas assume that the falsehoods they worry about are meaningfully governed by defamation law and the incentives created for journalists. That is a mistake.
Both Justices Gorsuch and Thomas assume that the falsehoods they worry about are meaningfully governed by defamation law and the incentives created for journalists. That is a mistake. Their error leads them to sidestep two particularly thorny problems that warrant much more of our attention.
Take, for example, falsehoods around vaccines. Frequently circulated nonsense includes claims that the COVID-19 vaccine contains a bioluminescent marker referencing the devil, that the COVID-19 vaccine causes infertility, and that ivermectin is a reliable cure for COVID-19. These are consequential, harmful falsehoods that flood our information ecosystem. And they are falsehoods where defamation—a doctrine that focuses on falsehoods about reputation, not just falsehoods generally—is not particularly relevant. Who would be the plaintiff in a claim that the vaccine causes infertility? And without a viable plaintiff, why exactly would the Sullivan standard even matter? We can carry out the same exercise with the QAnon theory that John F. Kennedy Jr., who has been dead for decades, will reappear and announce that former President Donald Trump is back in office. The defamation plaintiff here isn’t obvious, but the harm is. And that’s because reputation isn’t the problem here—the falsehood is.
This reveals the first thorny problem. Our public square is infected by coordinated campaigns to spew falsehood, motivated by profit, politics, and opportunism. As I’ve written elsewhere, falsehoods might originate on social media platforms but hopscotch seamlessly to television, radio, podcasts, and other channels in the information ecosystem. This repetition is powerful, and it has the power to persuade. What do we do? We can train people to spot misinformation, but it is challenging to do that at scale and in a timely way. We can incentivize platforms to police content more effectively, which is thorny. We can let the government weigh in as an arbiter of truth, which seems anathema to our tradition, or we can revisit the logic in the stolen valor case, United States v. Alvarez. Some mix of these interventions are needed, but the exact recipe will be tricky. Sullivan may well be relevant, especially for limited-purpose public figures, but at most it’s seasoning for that recipe.
This is why the journalistic irresponsibility point raised by Justice Gorsuch rings so hollow. Gorsuch blames disinformation on journalists who have little incentive, he claims, to actually do their jobs in light of the favorable Sullivan actual malice standard. But this ignores other actors who peddle disinformation entirely, ones who claim no mantle of journalism at all. Gorsuch realizes the business model for journalism—that is, the production of timely, truthful facts for the public’s benefit—is troubled. He then proposes a solution that would further imperil journalists who already struggle to afford libel insurance amidst a growing landscape of meritless litigation over unpleasant truths about the powerful. This does not serve truth and doesn’t even address most falsehood.
Even if we were to engage in the exercise of altering the actual malice standard, a lower standard may not help with many flavors of misinformation. Take, for example, the Chapadeau standard in New York. A lower standard than actual malice, Chapadeau applies to those acts taken “without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” At first blush, this sounds like it may be what Justices Thomas and Gorsuch would encourage. But as Judge Robert D. Sack observed, there are situations where even the lowered standard is ineffective:
If, for example, a television station were to rebroadcast a public official’s news conference despite the broadcaster’s knowledge that one of the speaker’s statements, a defamatory one, was likely false, the rebroadcast would arguably have been made “with subjective awareness of probable falsity” of the defamatory remarks—“actual malice”—yet in accordance with standards of responsible journalism under [the gross irresponsibility standard]. Konikoff v. Prudential Ins. Co. of America, 234 F.3d 92, 104 (2nd Cir. 2000)
This brings us to our second thorny problem. What do you do when public figures knowingly peddle falsehoods, and others repeat them because of newsworthiness? The way that journalists do contribute to falsehoods online is by recirculating the ones made by our public officials. The argument is that these falsehoods are newsworthy. They are and they aren’t: It may well be newsworthy and worth debunking, but mere stenography of outlandish claims holds little value. But here, defamation law would protect the recirculation through the fair report privilege. And for good reason: If we remove the legal protections for commenting on what powerful figures say, we risk returning to the scandalum magnatum days of English yore. What is the right balance?
At their heart, both of these problems are about amplification—amplification by social media platforms and amplification by journalists. Neither flavor of amplification is neatly resolved through a doctrine that focuses on reputation, like defamation law. The amplification questions are truly about the architecture of our public square, held up by private platforms and actors. We have not yet designed the correct, complex balance of norms, self-police, regulatory incentives, and yes, legal rules, to fix them. I wish the solution to our plagued public square was a mere tweak to a 57-year-old constitutional standard, but it’s not—and we should get started on the larger, thornier projects first.
Nabiha Syed is the president of The Markup.