Attacking the public's right to know

Gov. Ron DeSantis, who may be president one day, is a leading advocate of limiting press freedoms

I’ll say one thing for Florida Gov. Ron DeSantis: He’s a consistent opponent of a free press. He’d even undermine his friends at Fox News.

The presumptive presidential contender is proposing laws to weaken media libel protection in his own state. And he wants to revamp a landmark U.S. Supreme Court case that makes it hard for public officials to sue news organizations for libel.

There’s irony here: Fox —  the only news outlet DeSantis will speak with — is depending on that court ruling to defend itself from Dominion Voting System’s $1.6 billion defamation suit.  DeSantis must really hate the press to attack a court  doctrine Fox is counting on.

What’s really going on here? DeSantis and other right wingers want to undermine press freedom to report stories such as Watergate, the George Santos allegations and the Harvey Weinstein sex offenses. In effect, they’re swiping at your right to know.

Among the anti-press measures DeSantis supports in Florida is one to make comments from anonymous sources presumed to be false in defamation cases. Another would repeal the “journalist’s privilege” section of state law, which protects journalists from revealing the identity of anonymous sources in courts. 

Both these proposals are intended to muzzle news sources because they would know they could be outed in a court of law and face retribution for dishing dirt.

More ominously, though, DeSantis is itching for a way to get the conservative U.S. Supreme Court to weaken the New York Times v. Sullivan standard for libel involving public figures. 

In that 1964 case, the liberal “Warren” court held that public officials must prove that news organizations knowingly reported false allegations to win libel cases.  It is a difficult standard to meet, and it’s one that right-wingers would love to see changed. Doing so could discourage investigative reporting — exactly what crooked people and politicians want.

“There is a strong argument to be made that the Supreme Court overreached. This is not the government shutting down free speech. This is a private cause of action,” Florida state Rep. Alex Andrade, a DeSantis ally, told Politico.

New York Times v Sullivan is the very case that Fox News is relying on to defend itself in the Dominion defamation case. The company claims that Fox News hosts and guests repeatedly and falsely reported that Dominion’s counting machines could switch votes and that the company was founded in Venezuela to fix elections for Hugo Chávez. It was part of former President Trump’s 2020 stolen election claims.

Court depositions released in recent weeks showed Fox knew Trump’s voter fraud  claims were false but broadcast them anyway in a reckless pursuit of ratings.  Carlson privately said the former president was “acting like an insane person.” Depositions also revealed that Fox executives and  hosts had privately scoffed at allegations about Dominion.

New York Times v Sullivan does not shield journalists from outright lying. Still,  Fox may wiggle out by claiming — rightly — that anything the president says is newsworthy. But there’s a difference between reporting and advocating.. That’s where Fox, in my opinion, crossed a line.

Still, the possibility that  New York Times v Sullivan may protect heinous and Democracy-threatening journalists such as Tucker Carlson or Sean Hannity speaks to how powerful a press shield it is.  The fact that DeSantis wants to some day weaken it — after the Dominion case is resolved — speaks to how much he dislikes and fails to understand the role of the press.

He has lamented the decline of fact-checking and reporting of conflicting facts — but Fox is apparently public enemy No. 1 in this regard. DeSantis is not really interested in fairness or accuracy: He just wants to discourage critical journalism. 

Remember, he could be your president one day and nominate Supreme Court judges who — like Justices Neil M. Gorsuch and Justice Clarence Thomas —call for reconsideration of New York Times v Sullivan. This is why it’s so important to remember the context of that ruling.

The 9-0 decision followed a period “in what was perceived at the time as a near-crisis for the press caused by an increasing number of libel suits and large damage awards against publishers in the 1950s and ’60s,” according to a 2021 Columbia Journalism Review article. 

It was an era of controversy surrounding communism and civil rights.  Large jury verdicts led to the weaponizing of libel suits in political and cultural battles.

“The 1950s saw the resurgence of libel suits against the press. In the political ferment of the postwar era, an emboldened, well-funded press engaged more forthrightly in political critiques and investigative journalism, and the subjects of such reporting reacted with libel suits,” according to CJR.

By shielding the press from libel unless it outright lies, New York Times v Sullivan. discouraged officials from filing lawsuits, which are costly and discourage aggressive journalism.

In his majority opinion, Justice William Brennan Jr., noted that "erroneous statement is inevitable in free debate, and ... must be protected if the freedoms of expression are to have the breathing space that they need ... to survive.”

Brennan asserted that “debate on public issues should be uninhibited, robust and wide-open.” Criticism and even mistakes, he wrote, are part of the price a democratic society must pay for freedom.

Truth must be the first and absolute defense against libel lawsuits.  But inaccuracies happen, especially when you consider that reporters cannot compel sources to talk and do not have unlimited access to public, corporate or personal records. Sources can have motives to lie, mislead, obfuscate or threaten, and often they fear retaliation for telling the truth. 

If mistakes occur, they should be corrected plainly and openly.  But I’ve said it before and I’ll say it again: The solution to bad journalism is more journalism, not censorship or laws that discourage aggressive reporting.