The media has come under attack by President Donald Trump and his spokesmen as fake news. Trump’s stance is clear: he views media he takes offense to as propaganda or as false, whether it be spread by broadcast, traditional print or social media. As such, the danger for charges of defamation may spike.
Common law defines spoken defamation as slander. Being charged with either defamation or slander could impose serious legal fees and call into question the character and inclinations of the media.
Slander or defamation is actionable for accusing someone of a crime, claiming someone has a foul or loathsome disease, poorly portraying a person’s fitness to conduct business or suggesting someone has committed serious sexual misconduct.
Two recent cases—one a trial by judge and the other a trial by jury—involving corporate media may prove instructive.
Sarah Palin accused The New York Times of impugning her character. The paper, she claimed, called into question her responsibility in the 2011 mass shooting in Tucson, Arizona, during which congresswoman Gaby Giffords was seriously injured.
The New York Times filed a motion to dismiss her lawsuit. Senior Federal Judge Jed Rakoff of the South District Court of New York threw out Palin’s suit on the grounds that the former Alaskan governor failed to show that the newspaper acted with malicious intent.
On the other hand, Disney and its affiliate ABC News settled a defamation suit to end a three-week trial. ABC News alleged in an 11-part segment investigation in 2012 that pink slime, a filler in processed beef, was not really meat and that it was harmful to eat. Beef Products Inc. filed a defamation suit against Disney and ABC News. BPI claimed that ABC News’ coverage had adversely affected its bottom line, resulting in serious financial loss.
A landmark settlement of $177 million was declared before the trial went to jury. In settling, Disney erred on the side of caution. The company was fearful of a large settlement that would take years to contest in courts.
Even though the BPI case was viewed as frivolous and of little merit, Disney settled for $177 million, making it the largest amount a media company has ever paid in a defamation lawsuit. For Disney, the amount is equivalent to a year’s advertising revenue. A multibillion dollar corporation can absorb the impact without financial pain, albeit bruising its corporate ego and creating unease among its stockholders.
Nevertheless, Disney has set a precedent that opens up media companies to lawsuits for defamation. The United States, however, has a long and robust tradition of freedom of the press, guaranteed by the First Amendment; this freedom should never be impaired.
Nobody can say for sure that defamation or libel suits will proliferate. But, in the current political climate, the media is open to an attack on all fronts. This turns the clock of progress back to the darker days of the United States.