The U.S. Supreme Court has generally granted leeway for journalists and journalistic outlets to publish or say inaccurate things, as long as the errors are made in good faith.
Much of the relevant case law within the context of journalism falls under the umbrella of libel, which refers to the publication of a false statement of fact that seriously harms someone’s reputation. (Regular oral speech that is not published — with publication being anything from a printed news article to a broadcast story that airs to a tweet that appears online — falls under the umbrella of slander.) Libel is one of the main legal threats thrust upon journalists when they publish critical information. It is therefore important for journalists to be well-versed on the legal requirements for advancing a libel suit, as well as the classes of defenses that a journalist can offer.
Libel charges require the plaintiff (the injured party) to prove a few different things. First, they must prove that the defendant published the defamatory statement, meaning that they distributed it to someone besides themselves and the plaintiff. There is no requirement that the statement be distributed broadly or to the general public; simply posting it on a small, private Signal group may be enough.
Second, the plaintiff must prove that a ‘reasonable person’ will infer that the statement is about the plaintiff. The statement does not need to explicitly name a person. As long as there is enough identifying information in the statement for a person who knows the plaintiff to be reasonably likely to recognize the statement as being about the plaintiff, the requirement may be satisfied.
Third, the plaintiff must prove that the statement harmed their reputation, as opposed to being merely insulting or offensive. Generally speaking, it must be a false statement of fact that exposes a person to hatred, ridicule, or contempt; lowers them in the esteem of their peers; causes them to be shunned; or injures them in their business or trade. This could be satisfied, for example, if a statement alleges that the plaintiff is gay and the plaintiff can show that someone began treating them differently as a result of that information.
Fourth, the plaintiff must show that the statement was published with some level of fault. Fault requires that the defendant either did something they should not have done or failed to do something they should have.
Finally, the plaintiff must show that the statement was published without any applicable privilege. A number of privileges may be available depending on what was published by the defendant and the source they relied upon for the information.
Within journalism, the most common defense against the charge of libel is truth. If a statement is truthful, then it does not matter if the plaintiff is harmed. For example, an article claiming that Dr. Zamith clubs baby seals for fun would not be libelous if I had repeatedly clubbed baby seals for personal enjoyment, even if the publication resulted in fewer students taking my classes. (For the record, I do not club baby seals, for fun or professional reasons.) Notably, the burden of proof is generally on the plaintiff to show that a statement is false. Thus, in that example, I would have to show that there’s no evidence that I engage in such behavior — and any video showing me engaging in the act should be enough to summarily dismiss the libel suit. (In limited circumstances, the burden of proof may fall to the defendant.)
Statements of pure opinion, which cannot be proven true or false, cannot form the basis of a defamation (or libel) claim. For example, the assertion that “Dr. Zamith is a jerk” is clearly a statement of opinion and cannot serve as the basis of a libel claim. (However, the assertion that “Dr. Zamith is a jerk because he clubs baby seals” involves a statement of fact.) Additionally, the standards for harm and fault do vary depending on the plaintiff’s position in society.
Two particular Supreme Court decisions have clarified the libel protections and responsibilities for journalists. In New York Times Co. v. Sullivan (1964), the Times was alleged to have committed libel by publishing a full-page advertisement by supporters of Martin Luther King Jr. that criticized the police in Montgomery, Alabama, for their mistreatment of civil rights protesters. The ad had a number of factual inaccuracies, such as the number of times King had been arrested during the protests, and the Times subsequently published a retraction of the advertisement. Nevertheless, Montgomery Public Safety commissioner, L. B. Sullivan, sued the Times. Although he was not named in the ad, Sullivan argued that the inaccurate criticism of actions by the police in the ad was defamatory to him because it was his duty to supervise the police department. In an unanimous decision, the Court ruled that “the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false) or in reckless disregard of their truth or falsity.”
Put another way, when it comes to public officials, in the context of carrying out their public duties, the plaintiff must show that the journalistic error was due to an intent to harm the official or as a result of recklessness — meaning a journalist plainly disregarded information that should have been evident to them. This is a high bar, as it can be immensely difficult to prove a journalist’s intent to harm. Later cases extended the “actual malice” standard to encompass public figures, which include not only public officials but anyone who has gained a significant degree of fame or notoriety in general or in the context of a particular issue or controversy. This may include celebrities, elite athletes, or regular citizens who become embroiled in highly public debates.
Later, in the case Gertz v. Robert Welch, Inc. (1974), the Supreme Court established a separate standard for private figures, such as a teacher or local business owner. In this instance, a series of articles appearing in the magazine American Opinion claimed that Elmer Gertz, a lawyer who represented an individual shot and killed by a police officer, had orchestrated the officer’s conviction; that Gertz was a member of various communist front organizations; and that he had a lengthy criminal record of his own. Gertz sued over those false statements.
Although the editor of the publication conceded the errors and stated that he had made no independent efforts to verify the claims, he countered that the publication did not involve actual malice and was protected under the New York Times Co. v. Sullivan standard. In a 5-4 decision, the Supreme Court ruled in Gertz’s favor, noting that public figures had access to more resources and ways to defend themselves than private figures, and therefore public figures should be held to higher standards in libel cases. The Court further held that states could formulate their own, lower standards of libel for statements made about private figures. In practice, this has resulted in a lower standard for private figures across the U.S., with private figures having only to show that a journalist was negligent, or that they failed to engage in basic journalistic practices like trying to verify basic information prior to publication.
Although journalists who follow best practices receive robust protections against libel, they must nevertheless sometimes weigh the threat of a libel suit. Even if a journalist is well-positioned to defend themselves, the legal process can be very expensive — especially if the journalist lacks the support of an organization with a legal team on retainer, as is the case for most freelancers. In fact, several powerful figures have wielded libel lawsuits as a weapon against critical journalism, knowing that even an unsuccessful lawsuit is likely to make other journalists think twice about writing critical stories about them in the future. While some states have enacted laws penalizing frivolous lawsuits in recent years, they nevertheless continue to serve as powerful weapons for silencing journalists.
Libel refers to the publication of a false statement of fact that seriously harms someone’s reputation.
In the United States, libel claims usually must be proven by the plaintiff, and they must prove multiple things. In contrast, a defendant needs to only show that the statement was true or based on some form of privileged communication. Statements of pure opinion are not eligible for libel claims.
In the United States, public figures must clear a very high bar to succeed in a libel suit. The standards are considerably lower for private figures, though it remains a high bar.