U.S. Conservatives Are Threatening Global Free Speech
"Especially the free speech panels."
Argument An expert's point of view on a current event.
Republican attacks on domestic media are undermining legal protections around the world.
By Jacob Mchangama, CEO of The Future of Free Speech, and Nadine Strossen, former President of the ACLU.
This picture taken on November 10, 2016 inBerlin shows front pages of German newspapers the day after the victory of Donald Trump in US presidential elections. JOHN MACDOUGALL/AFP via Getty Images
March 7, 2023, 4:43 AM
Last month, Florida Gov. Ron DeSantis moderated .. https://www.facebook.com/watch/live/?ref=watch_permalink&v=1833236057055722 .. a panel on the importance of “truth.” DeSantis opened with a broadside against mainstream media outlets: “When you’re knowingly putting out false information and, indeed, I’d say these companies are probably the leading purveyors of disinformation in our entire society right now, there needs to be an ability for people to defend themselves … through a private right of action.”
[Insert: Conservative trolls on discussion boards project. Thanks largely to Trump more and more prominent conservative politicians are using personal psychological projection as a disinformation conveyor belt.]
But there is every reason to think that overturning Sullivan would cause massive collateral damage to political speech on both sides of the partisan divide. Worse yet, overturning Sullivan would not only undermine liberty, equality, and democracy in the United States. It would likely also do so in democracies around the world where these freedoms are already under systematic threat. In fact, Sullivan is one of the most successful exports of U.S. free speech doctrine, which has inspired judges across the globe to provide journalists and dissidents with a legal shield against censorial politicians and government officials.
The Republican efforts to overturn Sullivan might seem especially self-damaging. Surely, those benefiting the most from the First Amendment’s current protection for peddling falsehoods are “Make America Great Again” election deniers, QAnon enthusiasts, and other right-wing conspiracy theorists. It perhaps shouldn’t be a surprise that Republicans’ attacks on speech-protective defamation laws and on “news outlets engaged in bad behavior” are highly selective. After all, many of them defend Fox News despite recent evidence .. https://www.cnn.com/2023/02/27/media/dominion-fox-news/index.html .. that several of its anchors knowingly spread false information about the 2020 presidential election with the knowledge of senior executives. Ironically,Sullivan is Fox’s best hope of getting off the hook—although Fox’s gross journalistic malpractice may satisfy even Sullivan’s demanding standards.
So if Republicans in favor of eroding Sullivan are akin to a person trapped in a hole why shouldn’t Democrats hand them a shovel in the shape of bipartisan support? The pre-Sullivan history shows that more permissive libel laws will predictably be (ab)used by those in power, disproportionately silencing minority views and groups. Moreover, democratic self-government is weakened when “We the People” are deterred from vigorously criticizing our elected representatives for fear of defamation lawsuits, since even suits that are ultimately unsuccessful impose great tangible and intangible burdens.
In Sullivan, an Alabama official won an enormous civil damages award ($500,000) against civil rights leaders, as well as the New York Times, for an ad that described Alabama’s persecution of peaceful civil rights activists. The then-permissive libel laws imposed strict liability and substantial damages for even inadvertent, inconsequential inaccuracies. Southern officials took advantage of these laws to institute multiple libel lawsuits against civil rights activists and media outlets with the specific goal of silencing their critics. Recognizing that Sullivan’s tightened defamation standards would allow some minor false statements about officials to escape punishment, the Supreme Court also recognized that, pre-Sullivan, too many true statements were punished or chilled to the detriment of the civil rights cause and to democracy more broadly. This calculus still holds true today.
In Florida, lawmakers have introduced .. https://www.tampabay.com/news/florida-politics/2023/02/23/defamation-andrade-sexuality-race-gender-desantis-libel .. a bill that would make it much easier to sue for defamation by, among other things, limiting the protections for journalists and establishing that “an allegation that the plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity constitutes defamation per se.”Accusing someone of such discrimination would thus automatically be deemed damaging to their reputation, without needing to prove the contextual factors that are usually required to demonstrate harm in any particular case—including in the obverse case, involving false statements that someone has made accusations of this type of discrimination.
Regardless of whose political ox may be gored in any particular situation, the overall impact of weakening Sullivan would be to mute critics of government officials and policies. One only has to look at European democracies to find alarming examples of how the powerful can exploit fewer speech-protective defamation laws to silence criticism and “insults.” In 2022, the European Commission proposed a directive .. https://ec.europa.eu/commission/presscorner/detail/en/ip_22_2652 .. to counter the rising threat of strategic lawsuits against public participation (“SLAPPs”), which are used to intimidate and silence journalists and human rights defenders, even when the suit is meritless.
In the United Kingdom, rich, powerful, and often nefarious individuals .. https://www.theguardian.com/law/2023/feb/16/uk-solicitors-warned-not-to-act-as-hired-guns-to-silence-critics-of-super-rich .. have used expensive lawyers as “hired guns” and systematically sought to exploit the country’s plaintiff-friendly libel laws to silence critics with SLAPPs. Those who claim that their reputations have been unfairly impugned include Yevgeny Prigozhin, the Russian oligarch who runs the mercenary Wagner Group, which is currently fighting in Ukraine.
Read More
People Want Free Speech—for Themselves In a new global survey, respondents overwhelmingly supported freedom of expression—for anyone they agree with. Argument| Jacob Mchangama
Despite the globalization of Sullivan, the freedoms of speech and media are in decline. A recent UNESCO .. https://www.unesco.org/en/articles/defamation-laws-and-slapps-increasingly-misused-curtail-freedom-expression .. study concluded that 80 percent of the countries in the world criminalize defamation and that both criminal and civil defamation laws are being expanded in order to punish and threaten independent media and dissidents. The past decade has seen a dramatic increase .. https://cpj.org/data/?status=Imprisoned&start_year=1992&end_year=2022&group_by=year&charges%5B%5D=False%20news .. in the number of journalists imprisoned on charges of false news. In 2012, the Committee to Protect Journalists recorded one journalist imprisoned for such charges. In 2021, the number had risen to 51, with only a slight drop to 39 in 2022, which still marks the second-highest number of journalists imprisoned for false information since records began.
Should Sullivan be overturned, the bulwark of liberty that provides Americans an unparalleled freedom to criticize the powerful will be breached. That would also set a precedent for the rest of the world for unraveling hard-won limits on censorial power that are essential to individual freedom, democratic accountability, and resisting resurgent authoritarianism. The price would be high for democracy, both at home and abroad.
Jacob Mchangama is CEO of The Future of Free Speech, the author of Free Speech: A History From Socrates to Social Media, and Senior Fellow at the Foundation for Individual Rights and Expression.
Nadine Strossen is former President of the ACLU and Senior Fellow at the Foundation for Individual Rights and Expression.
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