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Saturday, January 18, 2025
Settlement and New York Times v. Sullivan
It is not news that at least three members of SCOTUS (Thomas, Alito, Gorsuch) have shown some desire to at least revisit New York Times v. Sullivan. I have been sanguine, and perhaps Pollyanna-ish, in believing there are not two more votes to undo the Court's first-and-strongest act of protecting free speech. But news reports that Paramount wants to settle Trump's suit against CBS over supposedly deceptive editing of 60 Minutes' Kamala Harris interview*--hot on the heals of Disney settling the suit against George Stephanopoulous over saying Trump had been found liable for rape--suggests the regime collapsing in a different respect.
[*] Purportedly because Paramount worries--and may have been told by told as much by incoming FCC Chair Brendan Carr--that the FCC will resist a proposed merger with Skydance Media and that Paramount must make concessions to Trump and his administration.
Prior to the 1960s, the Times' refused to settle defamation acti0ns. Adolph Ochs regarded settlement as "tribute" and would spend money only for litigation. By the early 1960s, $300 million in potential defamation liability to Southern officials (including $ 3 million against the Times for "Heed Our Rising Voices") rendered that strategy unworkable. That partly explains the Times taking Sullivan's case to SCOTUS as a First Amendment issue--it needed the decision to stop the organized strategy of extortionate litigation as a legal weapon to silence the media.**
[**] The rise and demand for anti-SLAPP statutes reflects the view that speakers need protection against not only liability but the cost of litigation itself, where plaintiffs seek to use the judicial process as the punishment.
We have returned to extortionate litigation but against a more compliant, and compromised, media ownership. And as bad as the Disney/Stephanopoulos case was, the Paramount/60 Minutes case is worse. The district court in Stephanopoulos had denied a motion to dismiss and there was at least a plausible claim that Stephanopoulos was not substantially truthful (and knew as much) when he repeatedly said Trump had been found liable for rape (rather than sexual abuse). Paramount wants to settle before the case even gets that far. And their case is absurd--Trump cannot identify any way in which 60 Minutes editing the interview injures Trump in a legally cognizable way such that, however deceptive, it loses constitutional protection. But Paramount has no interest in fighting for free speech where it conflicts with its business interests. A settlement in this case arguably extends beyond extortion to something like bribery--Paramount would give Trump tribute in exchange for the merge despite facing no real risk of legal jeopardy.
This post provides an opportunity to promote two pieces of scholarship: Samantha Barbas' Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, which uses the Times' internal files to explore the case as one about civil rights, and Thomas Healy's review of the book in Michigan Law Review.
Posted by Howard Wasserman on January 18, 2025 at 11:36 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink
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