Some judges and scholars are raising doubts about a nearly 60 -year-old precedent that sets a high bar for successful libel suits
In July two Supreme Court justices, Neil Gorsuch and Clarence Thomas, took aim atthe landmark ruling from 1964 that shielded newspapers from southern efforts to stifle coverage of brutality against civil-rights protesters. In their eyes, the “actual malice” standard—which requires public figures alleging libel to prove the publisher printed a statement knowing it was false or without caring whether it was true—may now be damaging.
Yet imposing a greater risk of costly defamation verdicts would make it “nearly impossible for most news organisations to continue to report on the government with the scrutiny we’ve come to expect,” says Sonja West of the University of Georgia. Ted Boutrous, who is defending, an entertainment network, thinks it would be “extraordinarily damaging” for the court to chip away at the decision. Several politicians have recently brought frivolous suits.
Ms West says perhaps the level of protection against defamation suits should hinge on whether the speech is a matter of public concern, rather than whether the plaintiff counts as a public figure. In a book review 17 years before she became a justice, Elena Kagan toyed with that idea, too. But for now,s core seems safe: only two of the nine justices have expressed an appetite to abandon it.
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