Judging Freedom - SPEECH - Protected speech vs. Harmful Disinformation.

Episode Date: March 14, 2022

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Hello there everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Monday, March 14, 2022. It's about 1.25 in the afternoon on the east coast of the United States. There are some libel cases that are slowly making their way through the court system that have a lot of us who study the First Amendment and write about the First Amendment and lecture on the First Amendment concerned. notable of them is my former employer, Fox News, involving the Dominion voting systems that were used in 2020 and comments that some of my former colleagues made about these systems. Now, when the media is a defendant in a libel case. So we're not talking about your neighbor insulting you. You're talking about a person claiming that the media defamed them. Defamation is defined as a statement that reduces a person's reputation. So Dominion, the manufacturer of these voting systems, claims that Fox reduced its reputation. Dominion has to show that Fox knowingly made statements that it knew were wrong

or that it was reckless in its concern for the truth. The reason that this case and similar ones against other media entities are drawing such attention is because two justices on the Supreme Court have done something that a few years ago would have been unthinkable. They have stated in lectures and seminars at law schools that they think that libel laws should change, that the media has too much protection, and that it would be fairer if it were easier for plaintiffs to prevail. They point out the recent case in which the former governor of Alaska, Sarah Palin, sued the New York Times. The New York Times made a mistake. They printed something about her that was wrong. But the jury found that the mistake was not done knowingly and was not done recklessly. So Justices Clarence Thomas and Neil Gorsuch have argued that this knowingly and recklessly standard

is too high and plaintiffs will never prevail, that the court has put its thumb on the scales in favor of the media. It did so in a very famous case called New York Times against Sullivan. Sullivan, L.B. Sullivan, was the commissioner of police in Montgomery, Alabama, and the New York Times published a full-page ad calling police in Montgomery racists, or alluding to the fact they were racists. It didn't even mention the commissioner's name. The commissioner sued the New York Times. This is in the 1950s. He won a judgment of a half a million dollars, a lot of money in 1956, a lot of money today, but it was a tremendous amount of money then. Pardon me. The case was upheld in the Alabama state courts, upheld by the Alabama Supreme

Court, and the U.S. Supreme Court reversed it. By the time it got to the U.S. Supreme Court, it was 1964. And the court came down with a new set of rules saying that when the plaintiff is a public figure like Sarah Palin was, like Dominion is, you probably never heard of Dominion, but it is a public figure. It's a name well known in the press and in the media, like Commissioner Sullivan was, then the public figure must prove that the media knowingly published a falsehood or was reckless in its concern with whether the statement was true or false. So the point of this is, those of us who love the First Amendment are concerned about the outcomes of these cases because we don't want them to get to the Supreme Court where the standard can be changed. Has the court put its thumb on the scale in favor of the press? Yes, it has, and it should.

Because the press should not be afraid to articulate its opinions. The whole purpose of the First Amendment is to encourage open, wide, robust, unbridled debate and statements about the policies and personnel of the government. That's not me. That's the Supreme Court in times against Sullivan, which at least two members of the current Supreme Court want to change. So will this case against Fox News and the companion cases, it's not in the same court or at the same time, but the principle is the same. One's against Veritas and one I think is against Vox. I might be wrong about that. But these are cases in which

public figures are suing media entities. If the media entity wins and the plaintiff appeals, will those cases get to the Supreme Court? And if they do, will the Supreme Court take its finger, its thumb off the scales in favor of the First Amendment? And if it does, what will that do to our debate? We have problems with democracy in America today. We will have problems like you wouldn't believe if the media is ever afraid to be candid. Judge Napolitano, judging freedom.