Bill Cotterell: DeSantis may want to beat the press, but libel law doesn’t need fixing

Gov. Ron DeSantis is all wrong in trying to intimidate the news media by making it easier to hit broadcasters and publishers with defamation suits, but he’s right about the political motives of the famous Supreme Court ruling that protects news companies from frivolous get-even court cases.

The unanimous 1964 decision in New York Times v. Sullivan held that, in order to collect libel damages for some scurrilous information reported in the news, a public official must prove not only that the reporting was false, but that the publication or broadcaster knew it was inaccurate — or showed a reckless disregard for the truth. The “Sullivan doctrine” was later expanded to include people of public interest, like movie stars, not just public officers.

Previous Cotterell columns –

• Rick Scott’s Social Security scare is a non-starter
• Yes, Florida teaches Black history, but…
• Governors – including DeSantis – shouldn’t enjoy this kind of privilege

DeSantis, a Harvard Law graduate, must know that Sullivan isn’t a lying license for the media. If I write that you’re a drunk, a thief or a sex offender, I’d better be able to back it up. Prominent people, including governors, can still sue if I distribute damaging information that I know to be false (or which I could have found out was untrue, with a little effort).

Trust in the media is at a historic low, and the political popularity of DeSantis is higher than any governor has enjoyed since Jeb Bush’s first term. It doesn’t help when star commentators of Fox News get caught sending emails admitting they knew things their programs were saying about the 2020 election were lies, or when Big Tech is defending itself in Supreme Court cases involving posts by terrorist organizations.

Former President Donald Trump said in his 2016 campaign he wanted to loosen libel laws so politicians could hit critical media where it hurts most, but nothing came of it. DeSantis recently held a panel discussion to suggest the state take a run at the Sullivan standard and ultimately see what the U.S. Supreme Court might think of it. And state Rep. Alex Andrade, R-Pensacola, introduced a bill that would give the justices a chance to do to Sullivan what it did to the abortion precedent last year.

The governor is rightly annoyed with a lot of media commentary on his legislative initiatives, and kicking the media around always appeals to the Trump wing of the Republican Party, whose support he’d need in a run for president. But the overheated, sometimes inaccurate, rhetoric about his anti-woke policies, education edicts and the pro-gun stuff hasn’t been personally defamatory. He’s a very conservative politician and the media are mostly liberals so there will be clashes. No need to make a federal case out of it.

To “open up” libel laws, as Trump once put it, would expose the media to costly litigation, which flailing print media can’t afford. It would further damage the public image of the big papers and networks, while stifling that free-wheeling discussion of political issues the 1960s-era Supreme Court wanted to encourage in the Sullivan ruling.

But if DeSantis’ desire to beat the press is partisan politics, the media’s favorite ruling was not all lofty idealism either.

The Times was sued by L.B. Sulllivan, public safety chief of Montgomery, Alabama, over an advertisement paid for by supporters of the civil rights movement. The ad wrongly said Dr. Martin Luther King Jr. was arrested seven times in the South and that Montgomery cops encircled Alabama State College to keep students from marching to the Capitol. Actually, King had been arrested four times and the police stationed themselves in a building near the campus.

The errors did not impugn Sullivan – who wasn’t even mentioned in the ad – but a local jury awarded $500,000 against those smartypants Yankees from the liberal big city newspaper. The nation’s highest court reversed, holding that, unless a publication knowingly spreads damaging falsehoods, a discussion of current events should not be inhibited by picky little details that don’t defame anyone.

In that pre-internet age, the justices couldn’t have foreseen Twitter and Facebook making everybody a journalist, able to spread lies about any person or topic in the news. But it’s still not legal to smear people with impunity.

Republican legislators who cheerfully give DeSantis whatever he wants like to say, “If it ain’t broke, don’t fix it.” This time, they ought to resist his latest temptation to “fix” the news media.