Danger lies ahead if news media lose protections from the Sullivan standard
By Tony Pederson
Donald Trump has made it clear that his lawsuits against news media could well be a part of his second term as president.
“I think you have to do it because they’re very dishonest,” he has said of the nation’s news media. “We need a great media. We need a fair media. We have to straighten out the press. Our press is very corrupt, almost as corrupt as our elections.”
Closer attention is being paid to Trump’s lawsuits after ABC News settled for $15 million after Trump sued over an interview by anchor George Stephanopoulos in which he said that Trump had been found “liable for rape.” The segment aired last March on “This Week” and referred to two civil verdicts in lawsuits by writer E. Jean Carroll. In the Stephanopoulos interview he wrongly said that Trump had been found “liable for rape” and for “defaming the victim of that rape.”
The $15 million will go into an escrow account for Trump’s presidential library and was labeled in an ABC News statement as a “charitable contribution.” There were reports that ABC News staff were dismayed the lawsuit was settled amid a fear that corporate interests were taking over for critical news decisions. ABC News is owned by the Disney Co. Critics of the settlement also pointed to the unusual nature of the timing in which Disney agreed to pay before discovery began.
There is a larger issue involved in such a lawsuit settlement, and that is the protections offered news media organizations against defamation lawsuits by the landmark libel case of The New York Times v. Sullivan in 1964. It’s commonly called the Sullivan standard, and it refers to a significant hurdle that public officials must reach to prevail in a libel suit. Public officials must prove that the libel was published with actual malice. That is, with knowledge that the information was false or with careless disregard as to whether it was false or not.
There are opposing opinions on the wisdom of settling lawsuits involving public officials. On one side is the opinion that settling lawsuits, especially those in which there is a factual error, prevents damage to the Sullivan standard. Having factual errors on display in depositions and testimony could indicate that news organizations are relying on Sullivan to escape accountability. Such airing of dirty newsroom laundry reduces public confidence in the news media which is at historic lows already. The opposite argument is that settling lawsuits simply encourages more litigation. Both positions have logic behind them.
The settlement in 2023 of Fox News owner Fox Corp. against a lawsuit by Dominion Voting Systems for $787 million brought similar analysis on both sides. The settlement amount was just under half the original claim for damages after Fox News commentators questioned the validity of the voting technology in the 2020 presidential election in which Trump lost to Joe Biden. Depositions had indicated some in the Fox newsroom questioned comments made on air by Fox commentators. It was also clear that Rupert Murdoch, Chairman of Fox Corp. and Fox News at the time, would have had to testify during a trial.
The New York Post, quoting sources, reported that Stephanopoulos was “apoplectic” and “humiliated” by the decision to settle the ABC News lawsuit. Former “Meet the Press” host Chuck Todd of NBC News was among the first to speak out against the settlement, saying his reaction was “shock” and that Stephanopoulos had been “abandoned” by Disney. “I think it sets a precedent that is going to be very difficult to get out from under, potentially,” said Todd.
In November, just before the 2024 election, Trump attorneys filed a lawsuit against CBS News “60 Minutes” after an interview with Vice President Kamala Harris. The lawsuit seeks $10 billion and claims that the interview was edited in a way that created “partisan and unlawful acts of election and voter interference.”
In addition to monetary damages, Trump attorneys are asking that the full, unedited interview be released. A number of First Amendment attorneys have labeled the lawsuit as frivolous. CBS said that the lawsuit is “completely without merit” and asked a judge to dismiss it.
Trump has also sued the Des Moines Register and its parent company, Gannett Co., for publishing a poll before the election that he called “fraud and election interference.”
The lawsuit filed in Polk County District Court in Iowa seeks unspecified damages under the state's Consumer Fraud Act. The lawsuit seeks "accountability for brazen election interference” committed by the newspaper and pollster J. Ann Selzer over a poll published on Nov. 2–three days before the voting was completed–that showed Harris leading Trump by 3 percentage points in Iowa. Trump won the state by 13 percentage points.
In another major case that could affect the Sullivan standard, former Alaska Gov. and vice-presidential candidate Sarah Palin is suing The New York Times and former opinion editor James Bennet over an editorial on June 14, 2017. The piece, entitled "America's Lethal Politics," linked the 2011 shooting of former Congresswoman Gabrielle Giffords to a digital graphic of a crosshairs over Democratic congressional districts published in March 2010 by Palin's political action committee.
Any relationship between the crosshairs map and the shooting was never established. Rather, at the time of the editorial, the attack was widely viewed as a result of the shooter's mental illness. Two days after the editorial appeared, the Times published a correction and said that no link between the graphic and the shooting of Giffords existed.
At trial in 2022, the judge granted the Times’ motion for summary judgment before the jury found that the Times was not liable for defamation. But last August, the 2nd Court of Appeals in New York remanded the case for retrial. In its opinion, the appeals court said that the trial judge "erroneously disregarded or discredited her evidence of actual malice and improperly substituted its own judgment for that of the jury."
For the benefit of younger journalists perhaps not familiar with the origins of the Sullivan standard, a brief review might be in order. The lawsuit did not originate with a news story or any type of investigative piece. It originated with an advertisement purchased in the Times by a group of civil rights activists seeking financial contributions.
The ad appeared in 1960 and criticized treatment of Martin Luther King and civil rights protesters by Montgomery, Ala., police. The ad contained several factual errors, including the number of times King had been arrested during the protests. L.B. Sullivan, Montgomery police commissioner, sued the Times for libel. A jury at trial ruled the errors to be libelous and awarded Sullivan $500,000, a judgment upheld by the Supreme Court of Alabama.
The U.S. Supreme Court took the case and reversed, ruling that the factual errors were part of an important national discussion. Out of the ruling came the actual malice standard for public officials to prove libel against news media. Justice William Brennan, writing for the court’s majority, said that the case occurred “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
The Sullivan ruling helped launch the modern era of serious investigative journalism, and it has been the standard level of protection for news media for more than 60 years. Two current Supreme Court justices–Clarence Thomas and Neil Gorsuch–have questioned whether the Sullivan case should be revisited.
In 2021, the Supreme Court denied certiorari on a case from the 11th Circuit in Florida, Berisha v. Lawson. The plaintiff in the case was ruled a public figure, and the lower court applied the actual malice standard in ruling for the defendant. Both Thomas and Gorsuch dissented and would have agreed to hear the case. Gorsuch wrote a detailed account of the changes in news media and technology that had occurred since Sullivan was decided in 1964.
Gorsuch wrote: “When the Court originally adopted the actual malice standard, it took the view that tolerating the publication of some false information was a necessary and acceptable cost to pay to ensure truthful statements vital to democratic self-government were not inadvertently suppressed. But over time the actual malice standard has evolved from a high bar to recovery
into an effective immunity from liability.”
There have been other occasions in which the court has declined an opportunity to revisit the Sullivan standard. In the current cases now in the lower courts and in others that may come, the Sullivan standard will frequently be at issue.
How news organizations handle the litigation may well provide a roadmap for continuing the strong media protections of Sullivan. Or that roadmap could reduce the protections and give government and government officials a stronger hand in litigation. If that occurs, the “profound national commitment” to debate on public issues will be damaged.
——————————————————————————————————————————————
Tony Pederson is managing fellow of the Overby Center for Southern Journalism and Politics and professor emeritus in journalism at Southern Methodist University in Dallas.