The mainstream media besmirches conservative public figures on a regular basis. Look no further than Donald Trump and Justice Brett Kavanaugh. Some conservatives believe the best way to answer media smears is to change the libel laws. That’s a well-intentioned idea, but it would end hurting conservatives the most. Say goodbye to conservative media if public officials were empowered to pursue frivolous lawsuits.
There’s no louder advocate for this idea than Trump. Ever since the 2016 campaign, Trump has wanted to hit back at the press with the power of newly-defined libel laws. “I’m going to open up our libel laws, so when [newspapers] write purposely negative and horrible and false articles, we can sue them and win lots of money,” he promised in 2016.
Libel laws have not been changed but Trump has repeated the suggestion throughout his presidency. During the Kavanaugh confirmation fight, he said: “I would love to see our libel laws get toughened up so you can take people and sue them.” On Sunday, Trump tweeted: “Justice Kavanaugh should sue The Failing New York Times for all they are worth!”
In order for him to do that, however, the U.S. Supreme Court would likely have to overturn New York Times v. Sullivan. The 1964 decision made it much harder for public figures to sue over defamation. Public figures have to prove that a publication demonstrated “actual malice”—meaning they knowingly printed false information with the intent to destroy. This high standard dissuades most public figures from pursuing litigation over false stories. The smears against Kavanaugh likely would not meet that standard in court. Supreme Court Justice Clarence Thomas wrote in February that this standard does not adhere to the Constitution and that it should be changed.
If Sullivan were thrown out, Kavanaugh could take the smear merchants to court.
The Left Would Have a Field Day
That would be good for him and others with the resources to sue—but it would be very bad for non-mainstream media. Independent media is not more likely to lie about public figures and this is not an argument that false stories should be protected. Independent media, particularly conservative media, are often shoestring operations that lack the resources to fight frivolous litigation. The Left would exploit this weakness for maximum effect.
Democratic officials are far more likely to claim something is a lie and receive elite support for that claim than conservatives are to get it. For example, Ilhan Omar. The freshman congresswoman from Minnesota claims reports about her possible immigration fraud and adultery are lies. Now imagine if she could sue over these claims. She’d probably lose in court, but that wouldn’t be the point.
She could just as easily sue to hurt a plethora of conservative media outlets. Just imagine how much money she would raise for the endeavor from delusional liberals. The mainstream media would approve of this action as a necessary assault against “targeted harassment.” Even if she lost in court, Omar would leave the defendants with substantial legal fees that they likely couldn’t cover.
Omar may not have a good chance in court, but other Democrats would thanks to liberal judges. One can imagine Democratic presidential hopeful Julian Castro winning a court case against Breitbart or another outlet that says he’s for open borders. Castro supports the decriminalization of illegal immigration, which effectively makes him pro-open borders. But he vigorously opposes that characterization and calls it a “right-wing talking point.” If he were feeling litigious, he could sue for libel. A liberal judge could take his side with his asinine arguments, especially if the judge reads the New York Times. The Grey Lady published a fact check that declared, “No, Democrats Don’t Want ‘Open Borders’” and suggests that it’s false to say otherwise.
Imagine What Liberal Judges Would Do
You could see the same thing happening if a conservative outlet claimed a Democrat was a socialist. Nothing would be too frivolous to sue over.
Representative Alexandria Ocasio-Cortez (D-N.Y.) would love to use this new power to bankrupt the Daily Caller, a site she falsely claims published nude photos of her. Rep. Frederica Wilson (D-Fla.) believes it should be illegal to criticize lawmakers online; just imagine if she had the power to sue those who criticize her.
Conservative public figures would not have the same advantage as liberals in court. Ocasio-Cortez would have a much better chance in court than Steve King (R-Iowa), even if King had a better case.
An entire industry already exists to destroy conservative media. (Media Matters, for example.) Democratic politicians view right-wing media as a threat to the republic and the mainstream media echoes this view. Liberal judges likely share this view and would rule in favor of their favorite politicians, regardless if the case was brought on dubious grounds.
Look at how liberal judges have transformed immigration law. Judges prevent the Trump Administration from enforcing immigration and make it harder to deny entry to any person who wishes to come here. We’re pretty close to an American judge ruling every human being has a right to immigrate to America.
Are these the people you trust with correcting mainstream media bias and smear?
The legal system is not neutral. It favors the Left and will not solve America’s media problems. The legal profession itself is overwhelmingly left-wing, especially when it comes to non-profit and pro-bono law. There’s an army of lawyers waiting to work for Omar, Ocasio-Cortez, and other leftists.
Changing libel laws may sound good at first, but all it would do is harm conservatives’ ability to challenge the mainstream media. The New York Times can afford a few lawsuits and the paper of record won’t change its bias if it loses one or two. It’s better to protect what we have than to foolishly destroy what we don’t have.
Love it or hate it, but New York Times v. Sullivan benefits the Right. It’s best if we keep it around.