Wednesday, November 15, 2017
Jeffrey Abramson has posted to SSRN Full Court Press: Drawing in Media Defenses in Libel and Privacy Cases. The abstract provides:
Recent jury verdicts against Rolling Stone Magazine and Gawker Media raise fundamental issues in defamation and privacy lawsuits, including who is a public figure, what counts as newsworthiness, and whether truth is always a defense under the First Amendment. Using those verdicts as a starting point, I reexamine the democratic arguments the Supreme Court relied on to protect free speech and the press in New York Times v. Sullivan. I conclude that subsequent cases overextended the New York Times rule in ways that weakened its democratic foundation. I suggest three reforms. Regarding the public figure doctrine, courts should enforce the oft-quoted, but frequently ignored, requirement that private individuals morph into public figures only to the extent that they voluntarily thrust themselves into a public controversy. In regard to privacy torts, truth should not be an absolute defense, no matter how uncomfortable such a conclusion is to one reading of the First Amendment. Judges and juries will have to continue to struggle over norms of newsworthiness when truth and privacy collide. Finally, media attention to the private lives of public officials, however justified on occasion, has become so routine as to defeat what New York Times v. Sullivan promised—a press focused on the investigation and criticism of official acts.