What Sullivan Protects

The Sullivan decision makes it harder for politicians to sue journalists for defamation. The Supreme Court held that public officials and candidates for office — and, in later cases expanding the precedent, other kinds of “public figures” — must meet a higher standard for defamation than private citizens.

Crucially, they need to be able to prove “actual malice.” This means that a journalist just getting something wrong in a way that damages a politician’s reputation isn’t enough. The “actual malice” standard means that you have to know your reporting is inaccurate — or, at the very least, you have to have displayed “reckless disregard” for accuracy. As Ken Bensinger put it in the New York Times, the effect of Sullivan is to empower journalists “to investigate and criticize public figures without fear that an unintentional error will result in crippling financial penalties.”

You might wonder if I’m exaggerating when I say overturning that ruling would be a “disaster” for freedom of the press. Is the freedom to print (even unintentional) inaccuracies really a kind of press freedom we should care about preserving? Is it a bad thing for journalists to sweat about the consequences if they get something wrong?

Facts, Values, and Press Freedom

In some ways, the shape of the controversy mirrors disputes about whether social media platforms should institute harsh rules against “misinformation.” In both cases, the pro-censorship side of the argument can sound reasonable. After all, they don’t want to stop people from expressing moral or political opinions, or from saying accurate things that embarrass powerful factions. They only want to crack down on the spread of falsehoods.

But the reality of trying to cover powerful and litigious people is more complicated than that. Political controversies often stem from divergent value judgments, but they also typically involve disagreements about factual questions.

Think about abortion rights. The argument between antiabortion and pro-abortion rights factions isn’t just about whether a fetus’s right to life is more important than a pregnant woman’s right to bodily autonomy. Supporters of extreme anti-abortion laws often make scientifically dubious claims about early-term fetuses being conscious and able to feel pain, and opponents of such laws typically disagree at least in part because they disagree with those premises.

Of course, that’s not the kind of example likely to be fought out in a defamation lawsuit — with or without Sullivan in place. But what about this one?

The antiwar movement twenty years ago didn’t disagree with Iraq War supporters just because they disagreed on whether defusing the danger supposedly posed by Saddam Hussein’s weapons of mass destruction (WMDs) would justify the horrors of a war. They also disputed the factual premise that Iraq had WMDs. In fact, those us who marched and organized against the war often didn’t confine ourselves to the claim that neoconservatives were wrong about this factual question. We insisted that George W. Bush, Dick Cheney, and their cronies had conspired to knowingly mislead the public. Thus the common slogan, plastered on antiwar bumper stickers: “Bush Lied, People Died.”

And that’s exactly the kind of thing a politician might be tempted to sue people for saying — whether it was the manufacturers of those bumper stickers or an anchor on Democracy Now.

Ok, you might argue, but Bush really did lie — and any journalist who claimed as much in print would be able to beat a defamation lawsuit even with the lower pre-Sullivan standard in place. Maybe. Personally, I’m not confident that truth will always win out in US courtrooms, especially when antiestablishment journalists with limited financial resources are being sued by powerful, deep-pocketed political actors.

Remember that in 2003, the Bush administration’s claims about WMDs were being echoed by mainstream Democrats and respectable outlets like the New York Times. This version of reality might well have won out against the “conspiratorial” claims of dissident journalists at marginal outlets in the absence of the higher standard set by Sullivan.

And even if you disagree with me about how such a hypothetical court case would have played out, there’s a much more mundane concern at the heart of the issue.

If you’re a journalist covering the alleged misdeeds of a future DeSantis administration, and you’ve made normal and reasonable efforts to make sure that what you’re reporting is accurate, perfect certainty is rarely on the table. In a legal environment where it’s easier to sue news outlets, any rational editor at an outlet that can’t afford to settle or pay out has a much stronger incentive to steer away from making the claim. If you’re 90 percent sure that something is right and it’s flattering to President DeSantis, go ahead and print it. If you’re 90 percent sure that something is right and it’s unflattering to him, you might want to think twice about what the remaining 10 percent might mean for the financial future of your publication.

That’s a recipe for a much more compliant media — a priority of authoritarian leaders everywhere.

“Normal Parameters”

Writing in the Atlantic in 2021, Connor Friedersdorf argued that DeSantis and Trump are completely different. DeSantis’s flaws fell within “normal parameters,” while Trump was uniquely frightening.

Bill Maher said much the same thing last year in an argument on his HBO show Real Time with progressive commentator Krystal Ball. She asked him if he really thought DeSantis would be “way better” than Trump, and Maher cut off another guest to say, “I’d like to answer that. Yes, yes, I do.” Explaining his answer, Maher insisted that DeSantis hadn’t shown “contempt for democratic processes.”

The distinction has always been dubious. DeSantis backed Trump’s efforts to stay in office after losing the 2020 election. He went on to pass laws making it harder to vote in Florida. He created a grotesque “Office of Election Crimes and Security” to clamp down on alleged voter fraud. When his election cops made their first big bust, though, it had nothing to do with fraud. Instead, the governor was sending SWAT teams to arrest ex-convicts whose crime was registering to vote because they didn’t realize that Florida’s confusing and antidemocratic laws stripped them of that right.

More recently, he’s moved to silence dissent against his ultraconservative agenda at colleges and universities. Seeking to make an example of Florida’s tiny liberal New College, he swooped in to weaken tenure protections, meddle with faculty decisions about curriculum, and replace the college’s president and several members of the Board of Trustees with right-wing ideologues like Christopher Rufo — someone best known for promoting laws designed to prevent classroom discussions of “divisive” and “controversial” concepts.

And now he’s announced his ambition to destroy one of the primary legal protections of press freedom in the United States.

Stylistically, DeSantis may be more like an old-school, Bush-era Republican than he is like Donald Trump or Marjorie Taylor Greene. But is he really operating within “normal parameters” in a way that Trump is not?

Ron DeSantis has openly announced his intention to make it harder for journalists to report unfavorably on him without ending up in court. The idea that he’s “way better” than Trump because he respects “democratic processes” is a bad joke.