The First Amendment and the Responsibilities of Journalists in Its Defense

When should the First Amendment Shield Reporters? The Boundaries of Press Protection in Defamation and Beyond. 

The First Amendment is the staple of American democracy, safeguarding freedom of speech and the press. For reporters and news outlets, this constitutional protection is critical when it comes to allowing them to inform the public, hold people in positions of power accountable, and allow for themselves and others to engage in healthy conversations. However, the shield of the First Amendment is not absolute and does not protect journalists from everything. But, understanding when this shield should protect the press, and when it should not, is essential in balancing free expression with accountability. 

When Should the First Amendment Be a Shield? 

The First Amendment’s protection of the press is the most important when it comes to journalists reporting on matters of public concern, including political discourse, public officials’ conduct, and social issues. One example of this comes from the Supreme Court’s decision in the case of the New York Times Co. v. Sullivan (1964) which set a precedent on “actual malice.” The case ended in a verdict which allowed plaintiffs who are public officials to prove “actual malice” or proof that they knew the publisher’s information was false or acted with reckless disregard for the truth in order to win a defamation case. This standard has now allowed further protection for journalists against ridiculous lawsuits that could otherwise harm investigative journalism or critical commentary due to a public figure’s feelings being hurt. 

And, in cases where the press does report false information with reckless disregard for the truth, public officials are able to seek the justice they deserve. This protection not only helps stop frivolous lawsuits but it also ensures a free press can expose wrongdoing and provide the public with information that is essential to understand. 

When Should the Shield Not Apply? 

The First Amendment does not protect knowingly false information or those made with disregard for the truth. In, The Weponized Lawsuit Against the Media: Litigation Funding as a New Threat to Journalism, the author brings the issue of distortion and manipulation when it comes to weaponizing the First Amendment. Professor and author, Lili Levi, explores how third-party litigation funding can become a tool used to silence journalists. Which is why third-party funding for lawsuits can create more harm than good, especially when media defendants begin to not act in good faith. And, her analysis suggests that the press cannot hide behind a shield when it’s goal is provocation, humiliation, or the public’s opinions fueling a certain side of the argument. 

Instead, journalists should focus on using their voices for the good of the public rather than to appeal to those in higher positions of power or those funding lawsuits, vacations, etc. 

The Rise of Weaponized Defamation Suits 

When it comes to lawsuits, they don’t always have to have the intent of winning. A SLAPP lawsuit, also known as Strategic Lawsuits Against Public Participation are lawsuits made to punish and intimidate people who threaten public figures. These suits often are lengthy and run up a heavy bill for all parties involved, which helps those in positions of power who can afford a lengthy lawsuit to win but fear running out of money and time on the opposing side. 

One example of this is Palin v. The New York Times Co., in which former Alaska Governor Sarah Palin sued the New York Times for allegedly linking her PAC to a mass shooting. The case was ultimately dismissed but still sparked debate about lawsuits that do not aim to address a specific problem, but rather aim to silence dissent. 

What Must Plaintiff’s Prove? 

In order to prove defamation, especially as a public figure, the plaintiff must show that only is the statement made false and damaging, but that it was made with actual malice. They must also prove that the statement was a false assertion of fact, not opinion. And, the reason why the standards are so high, is because of the plaintiff’s position in the public eye. In a digital world where rumors spread fast and misinformation floods social media platforms, it can be difficult to decide whether a reporter acted with actual malice or if they just followed a widely-talked about rumor. And, as the Court established in the Sullivan case, “erroneous statements are inevitable in free debate” and must be protected if public opinion is to remain. 

Do Anti-SLAPP Laws Help? 

One thousand percent, because Anti-SLAPP laws are designed to protect journalists from nonsensical lawsuits before they make it too far. This helps journalists save time and money from being subjected to lawsuits that would otherwise be a waste of every-party’s time. According to the Arizona Law Review’s article ‘Rethinking Defamation’ Anti-SLAPP laws help to “preserve legitimate claims while preventing misuse of the courts to suppress expression.” 

However, not every state has these laws set in place and each law carries a different strength against Anti-SLAPP statutes. Moving forward, every state should look to places like Arizona and learn from other’s mistakes like Palin’s lawsuit and change accordingly. 

 While shielding journalists under the First Amendment is a tool we should be thankful for as journalists when reporting on matters of public concern. Cases like New York Times Co. v. United States and Sullivan, illustrate just how crucial these protections are in maintaining a free and informed press. However, this shield should not be abused and when journalists are acting with actual malice or with reckless disregard for the truth, it is the right of the legal system to intervene and provide justice. And, in an era of weaponized litigation, anti-SLAPP laws are great tools to ensure a balance of power and disregard power-moves to silence journalists.