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UPDATED (Dec. 22, 2023): When it comes to defamation and the First Amendment (think New York Times v. Sullivan and its progeny), settled law continues to be unsettled . . . or so it may come to pass.

The legal landscape has changed so much in the three years since I last visited this topic. Simply consider the following:

• Rudy Giuliani is after a $148 million judgment in his defamation case.
• Donald Trump of the E. Jean Carroll defamation trial so he can appeal to the Supreme Court.
• The MyPillow guy (CEO Mike Lindell) claims he’s out of money and in the $1.3 billion defamation case against him by Smartmatic and Dominion Voting Systems.
• After unsuccessfully attempting to have the case against her , Sidney Powell is facing a $1.3 billion suit by Dominion Voting Systems.
• “, Ernest Walker and Gary Fielder, were ordered by a U.S. judge to pay in legal fees after finding they made reckless and frivolous claims in a Colorado lawsuit that accused Dominion Voting Systems, Meta's Facebook and the Center for Tech and Civic Life nonprofit of trying to steal the election from Trump.”
• Maricopa County Recorder Stephen Richer has filed a defamation lawsuit against failed gubernatorial candidate Kari Lake.
• Andrew Chung, “,” Reuters (Oct. 10)

The U.S. Supreme Court on Tuesday declined to hear a bid by a prominent former West Virginia mining company executive to make it easier for public figures to sue for defamation in a case that challenged longstanding protections for news organizations. The justices turned away former Massey Energy CEO Donald Blankenship's appeal of a lower court's decision throwing out his defamation lawsuit against media outlets including Fox News and MSNBC for characterizing him as a ‘felon’ during his unsuccessful 2018 run for the U.S. Senate. 

• In the Court denied review in a case asking the Justices to consider whether a criminal prosecution for alleged defamation of a public official violated the First Amendment.

Finally, let us not overlook Justice Clarence Thomas’s renewed attack on New York Times v. Sullivan in his dissent in .

Where will it all end? I suspect that sooner or later one of these defamation cases will be reviewed by the High Court. And what will the in American history do?

Related

• Lyrissa Lidsky, "," Journal of Free Speech Law (2023)
• David Cole and Brian Hauss, “,” ACLU (May 1)
• Kathryn Montalbano, “,” UKNOW (Oct. 19)

Kyu Ho Youm, media law expert, will deliver the State of the First Amendment Address 5:30-6:30 p.m. Thursday, Nov. 2. The title of the address is “Beyond the First Amendment in the Global Century: Freedom of Speech as America’s Best Export.”

— rklc

“You can’t throw a charge out there like that and then say, ‘I have a double secret probation guy who I can’t mention but he worked for Romney and worked for The Lincoln Project,’” Steve Bannon Rudy Giuliani.

The times seem to be changing as defamation lawsuits by and against public figures are rather in vogue. As ever more ludicrous lies found their way into the marketplace of defamation, character assassination became something of a pastime. . . or so it appeared until the lawsuits came. And then, all of a sudden the reality of damage actions set in.

The line between truth and falsity had been erased so often on cable TV and social media that reports of "fake news" were being tagged as "fake." This bizarre cycle became both normal and dizzying as opinions (ever so broadly defined) replaced facts. It was a great day for relativity, not in the scientific sense but in the all-opinions-are equal sense — in the only facts that count are "my facts" sense. In that respect, "truth" became both personal and political.

If the president could unleash a storm of , and if fact-checkers got worn out trying to set the record straight, did truth really matter any longer? If Kayleigh McEnany, Trump's press secretary, could with smug conviction, what did it matter what one's eyes saw or ears heard? With facts flying out the window with wild abandon, why not have a defamation free-for-all? Against that general backdrop, any variety of defamation actions found their way to the courts — some legitimate, some vindictive, some brought for PR purposes, and some ridiculous. Simply consider the following:

•  (threatened lawsuit)
• (threatened lawsuits)
•  (see also from First Amendment Watch & )

Update

• Oliver Darcy, ",’”  CNN (Feb. 4, 2021)

Related

• David Knowles, "," Yahoo!News (Feb. 3)
• George Alexander & Thomas Szaz, "," Notre Dame Lawyer (1967)

What explains all of this?

I asked three noted First Amendment experts for their opinions in response to that question. Here is what they said:

Lee Levine: "There are two very different phenomena at play here. Although both of them can fairly be traced to Donald Trump. First, ever since he descended the golden escalator, there has been, at least on the right, a reinvigoration of the use of libel suits by public officials and public figures as a tool to "open up the libel laws" and fight back against what Trump labeled "fake news" disseminated by responsible media (aka "enemies of the people"). His own threats of libel suits, as well as those actually filed by his family, campaign, etc., effectively opened the door for the likes of Sarah Palin, Devin Nunes, Justin Fairfax, and others to disavow the conventional wisdom that public officials had nothing to gain by suing the media.

Second, Trump legitimized lying as a political tool at least in some circles. Ironically, this has emboldened certain public figures, especially those who can find an audience either on social media or right-wing "news" outlets, to propagate or otherwise pass long defamatory falsehoods. And that, in turn, has led to lawsuits and threatened lawsuits against the likes of Sidney Powell and Rudy Giuliani.

: "The avalanche of defamation suits seems to be a fallout of our fractious political culture, another measure of where we are now. On one end of the spectrum, we've had four years of unceasing attacks against the press and some of these lawsuits appear to fit there. They are filed on such insubstantial grounds that they seem aimed to rally the politically faithful and deter critical coverage or make it more expensive.

Another source of defamation suits reflect a related phenomenon, the attack on truth. They arise from the blatantly false conspiracy theories circulating today and made more powerful by social media and internet echo chambers. Some of these false assertions have damaged private and public reputations—such as the election fraud falsehoods and the denials that the Sandy Hook massacres occurred. These are very substantial cases that could potentially meet the stringent actual malice standards of NYT v. Sullivan."

: “There clearly has been a significant increase in defamation suits by and against public officials and public figures. Some seem quite frivolous and are likely just efforts to use litigation to make a political point. Some are a result of Donald Trump and his rhetoric. But I also think it reflects the tremendous growth of media where defamatory things can be said and the lack of Supreme Court decisions about defamation for a long time.”

Related

First Amendment filings in impeachment senate trial

"Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President's statements [about the election results] were accurate or not, and he therefore denies they were false."

—Lawyers for former President Trump ()

Related

• Ilya Somin, "," The Volokh Conspiracy (Feb. 2)
• Catherine Ross, "," Slate (Jan. 19)

Upcoming Zoom interview with Floyd Abrams 

• February 8, 5:00 PM, ET: "" Lewes Public Library (free, registration required)

FIRE launches new podcast reading series, ‘Free Speech Out Loud’

Reading might be fundamental, but here at ��֭����, we’ve found listening is equally as important.

That’s why FIREis launching “Free Speech Out Loud,” a new podcast reading series dedicated to increasing accessibility to free speech jurisprudence and related materials. Free Speech Out Loud will be releasing audio recordings of famous First Amendment court opinions and other primary source documents that serve as the backbone of the free speech rights we enjoy today.

As FIREproduces recordings, they will be released first as podcast episodes. Then, after each “season” of content is complete, we’ll bundle the recordings together and release them as free audiobooks.

The first batch of recordings will be centered around the cases and documents that most inform ��֭����’s work protecting student speech. In the first episode, hear how the Supreme Court handled the censorship of “vulgar” and “lewd” student speech in the opinion for Bethel School District v. Fraser.

Look out for more recordings showing how the Court handled topics such as student journalism censorship (Papish v. Board of Curators of the University of Missouri and Hazelwood School District v. Kuhlmeier) and student protests (Tinker v. Des Moines Independent Community School District and Morse v. Frederick). Additionally, we’ll be recording important documents such as The University of Chicago’s 1967 Kalven Report.

We hope that these recordings will be useful for lawyers looking to refresh their knowledge, law students on the go, and other individuals looking to educate themselves using an audio medium.

Subscribe on or to stay up to date with the latest recordings and be on the lookout for “Free Speech Out Loud” on all other podcast apps!

New scholarly articles

• Emilie Erickson, "," Minnesota Law Review (2021)
• John Martin, "," Columbia Law Forum (2021)
• John Clayton, "" Columbia Law Review (2020)
• Clay Calvert, "" UCLA Law Review (2020)

So to Speak Podcast

• Ep. 128: "John McWhorter says academics are really, really worried"

Last summer, Columbia University Professor John McWhorter wrote that he was receiving missives almost daily “from professors living in constant fear for their career because their opinions” are incompatible with campus orthodoxies. On today’s episode of So to Speak: The Free Speech Podcast, we catch up with McWhorter to discuss how the culture has changed (or not) since The Atlantic published his article,

McWhorter is a member of ��֭����’s Board of Directors and the host of the popular .

In the news

• "," First Amendment Watch (Jan. 29)
• "," The First Amendment Center (AP, Jan. 28)
• Cecilia Kang, "," New York Times (Jan. 26)
• "," JDSUPRA (Jan. 7)

2020-2021 SCOTUS term: Free expression & related cases

Cases decided 

•  (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)

Cases argued

• (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case)
• (OA: Nov. 4, 2020) (religious expression: free exercise & free speech claims)
• (OA: Oct. 5, 2020) (standing/judicial elections)

Cert. granted

• (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case)
• (OA: Oct. 5, 2020) (standing/judicial elections)
• (OA: Nov. 4, 2020) (religious expression: free exercise & free speech claims)

Pending petitions

• Corn et al v. Mississippi Dept. of Public Safety ()

Cert. denied

First Amendment-related 

•  (nominal damages and mootness in campus speech context) (cert. granted)
• (Re: Section 202(h) of the Telecommunications Act of 1996) (cert. granted)
• (Re: FCC cross-ownership restrictions) (cert. granted)
• (state anti-SLAPP laws in federal diversity cases) (cert. denied)

Last scheduled FAN

• FAN 284: "Federal law struck down — National Park Service can’t compel permits and fees for commercial filming”