In 2020, several news organizations faced defamation lawsuits regarding their election coverage and the tension between freedom of the press and accountability came into sharp focus.
The First Amendment provides that, “Congress make no law respecting an establishment of religion, or prohibiting its free exercise thereof; or abridging the freedom of speech, or of the press,” according to the First Amendment to the U.S. Constitution. Additionally, it protects assembly as well as the right to petition the Government for a redress of grievances. Primarily, America prides itself in allowing its citizens to speak freely and extends this protection to news outlets.
However, this protection does not grant reporters an impenetrable shield behind which anything can be said without consequence. Complete and absolute immunity from accountability would be irresponsible and dangerous. Journalists and the organizations they represent hold themselves to certain standards. Writers also have reputations at stake to uphold. Although reputation is not an important value to everyone, editors and peer reviewers aid in screening out mistakes.
It is essential for information to be accessible to the public and responsibly dispersed. Although it is technically alright by law to produce inaccurate information, the social penalties of doing so or the threat of career loss typically prevent this from occurring intentionally.
Considering the First Amendment speaks against censorship of the press, reporters unequivocally have the right to the freedom of expression. Media organizations have standards of writing, as well as codes of conduct. The New York Times, for example, has a Standards and Ethics page which begins with, “The trust of our readers is essential.” Their public ethics handbook outlines specific practices in order to fact-check, verify sources, and discloses conflicts of interest. This requires that reporters have integrity by verifying their information through multiple sources and also ensures distinguishing between advocacy and news reporting. They demonstrate this sentiment through their actions as a company. With an Ethical Journalism Booklet provided for the public to view, it is taken very seriously.
Professionals in the media have stringent standards. The Society of Professional Journalists states the first of four principles for ethical journalism to be, “Seek Truth and Report It,” which goes on to provide a detailed and strict way of writing that reporters must follow. The journalism community’s commitment to truth is evident in these rigorous codes, which hold media professionals accountable for their work.
It’s important to remember what might be thought of as a fact today can be seen as a mistake tomorrow. From nutritional guidelines that shift between recommending and warning against certain foods, there is new information being produced and processed daily. The First Amendment should protect reporters and news organizations to inform the public.
Through the 1990s until current day, issues pertaining to the media v. free speech have graced the courts. Notable cases include:
Grosjean v. American Press Co. in 1936 established that any interference from the government preventing free expression is not allowed according to the First Amendment as it explicitly provides the press with protection. Specifically, this case covers an instance where media was being taxed for its content in Louisiana, which had violated First Amendment rights.
The New York Times v. Sullivan in 1964 finalized a malice standard which, “…is the legal standard established by the Supreme Court for libel cases to determine when public officials or public figures may recover damages in lawsuits against the news media.” This means they must provide evidence that false statements were made while clearly knowing they were incorrect. I believe in the instance of malice there should be no shield for the media, by principle and based on these court proceedings.
The weaponized defamation lawsuit against members of the media is concerning. Even with litigation funding, where court costs are financially backed by private parties, courts take time which in turn takes even more money. This creates a chilling effect on investigative reporting, as the threat of being sued majorly interferes with the natural flow of information. Even if supported for legal fees, news organizations might instead choose silence rather than reporting important stories.
In cases where a news organization is sued for defamation, it has to be proven that the statement is false. If true, that is not defamation. Reputational harm and malice need to be preexisting for it to constitute as a defamation case as well.
Anti-SLAPP, or Strategic Lawsuit Against Public Participation, laws are statutes that have been put in place to lessen the amount of lawsuits used to intimidate another party into not speaking out. These types of tricky lawsuits made to silence others result in court fees and can take considerable time and energy. Anti-SLAPP statutes are in place to protect individuals’ wallets, time, and energy.
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