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Changing Landmark Libel Ruling Not a Solution to Disinformation, Lawyer Says

New York Times Vice President and General Counsel James Goodale, is surrounded by reporters, June 17,1971 on his arrival at Federal Court in New York to answer charges brought against the paper regarding the publishing of top secret material.

A rise in disinformation in the digital media age was cited this month by two Supreme Court justices, who questioned whether a landmark libel case should be reconsidered.

The case in question — New York Times v. Sullivan — has set the precedent for libel lawsuits since 1964. In it, the Supreme Court ruled that public officials needed to be held to a higher standard by proving that a defendant published false information with "actual malice."

But in their dissent to the Supreme Court decision not to hear a case filed by Shkelzen Berisha, the son of Albania's former prime minister, Justices Clarence Thomas and Neil Gorsuch wrote that the 1964 ruling did not offer sufficient protections or recourse. The justices said that the digital age has allowed for greater disinformation and that more people are considered public figures.

Their views were prompted by a lawsuit that Berisha had filed against reporter Guy Lawson. In it, Berisha said that Lawson's 2015 book falsely connected him to organized crime and arms trafficking in Albania.

A lower court had ruled that Berisha was a "limited public figure" and therefore had to prove that Lawson acted with "actual malice."

But Gorsuch wrote that because disinformation could spread more easily online than it could via traditional news outlets, the actual malice standard should be lower.

James Goodale, who represented the Times in the 1964 case as well as in the Pentagon Papers and other prominent First Amendment cases, agrees with Thomas and Gorsuch's concerns about disinformation on social media but does not think the solution is to change or overrule the landmark case.

Instead, the Fordham University School of Law professor says Congress should revise Section 230, which protects online platforms from being responsible for what users say on their sites.

Following are excerpts from a VOA interview with Goodale. The questions and answers have been edited for length and clarity.

QUESTION: Justices Thomas and Gorsuch question whether New York Times v. Sullivan should be reconsidered, citing a rise in disinformation. What is your view?

ANSWER: I do not believe the opinion should be reconsidered. The (Sullivan) opinion overruled an Alabama state court decision in which it decided The New York Times had to pay a half million dollars in damages. While that amount seems small by today's standards, that verdict and others that the Alabama courts were either considering or, in fact, awarded at some point against the Times would have bankrupt the (paper). It came at a crucial time for the future of newspapers that wanted to cover events down South.

I think the principal concern is that the media world has changed. We no longer have successful, prosperous newspapers in great number. In its place we have social media. Their (the justices') argument is that if we changed the rule, we would change rules to fit a different economic situation with respect to how news is delivered.

Q: Do you think that argument holds water?

A: There is tremendous amounts of disinformation (on social media).

(But) Judge Gorsuch in particular is aiming at the wrong target. The reason, in my view, there is more disinformation and more libelous statements floating around is because Congress passed Section 230 that permits (platforms such as) Facebook and Google to publish anything they want, without any liability.

As a consequence, they have no incentive for being responsible for that publication. If in fact that rule were changed — and there are plenty of people who think it should be changed — I think that a lot of things would be different today, including the amount of disinformation.

Q: Gorsuch writes that the decision "to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable." Do you agree?

A: First of all, we should recognize where the criticism is coming from. It's coming from the conservative right, who are unhappy with what the liberal press writes about conservatives in general.

It also implies by the use of the word "subsidy" that there's no penalty for what you publish.

I think he is really talking about the press in one breath and then, in the same breath, lumping in social media.

I would say that for the print press, there is no such subsidy as he implies because every publication is carefully vetted, or at least is subject to questioning, either by the reporter, the editor, or if they have a lawyer, by a lawyer.

What happens on social media is people say whatever they want, just as Justice Gorsuch says, and you end up with a subsidy in effect that's been given by Congress to let them do it without any consequences.

Now, to be fair, Facebook has a system of trying to check out some of the statements that are made.

So what Gorsuch is complaining about is absolutely running off the mouth of social media. And I agree with him. I think he's 100% right. I do not think the solution, however, is to change the libel laws.

He has the right problem, but the wrong solution.

The solution ought to be that Facebook should be made responsible. And we'd have a complete change. And that's up to Congress.

Congress have been sitting on complaints about 230 for half a decade and doing nothing about them. Even Facebook admits it has too much freedom. Facebook runs ads on the back page of The New York Times saying, "We want 230 changed."

Editor's note: During testimony to Congress in March 2021, Facebook founder Mark Zuckerberg recommended that the law be amended.

Q: Does New York Times v. Sullivan go far enough in protecting media from libel, especially in today's digital and social media landscape?

A: I think so. The rule is, basically, if you are lying, you're going to have problems. But as I said, the problem is not the law. It's the fact that they're able to get on social media and mouth off, and they don't have any money, so no one sues them.

Q: Finally, you have represented news outlets in landmark cases including New York Times v. Sullivan, the Pentagon Papers and Branzburg v. Hayes. How have these shaped your career?

A: I was lucky to have come on the legal scene at the time that the First Amendment was suddenly being dusted off and used, particularly in media cases, but there's been a huge revolution in the First Amendment.

(The) cases you talk about are all the same. In other words, there is a situation where you have a law that's been in place for a long time — a libel law. And all of a sudden, someone says, "Why doesn't the First Amendment apply to a libel law?"

(With) the reporter's privilege case (Branzburg v. Hayes), the law said you have to cough up information about sources if you're asked to do so. Where's the First Amendment in all that? (The case) was won by the government, but we were able to convince lawyers and legislators throughout the country to take the principle of the case.

What we argued in that case — namely that the First Amendment protects you — is now a law in (nearly every) state.