Journalists under siege: Anticipated assaults on New York Times v. Sullivan, as well as shield, defamation, and wiretapping laws
Reporters must think out of the box to survive the next four years
A convicted criminal who acts like a mob boss and is hellbent on revenge against his real and imagined enemies—even those who have done nothing more than defend the rule of law—will soon control, directly or indirectly, every aspect of the federal government. And the U.S. Supreme Court’s 7-3 super majority of conservative justices will likely have his back and, more often than not, provide him with inexplicable immunity for his past and future crimes.
The President-elect believes that he has the right to defame at will without challenges or consequences for his false and misleading words and deeds.
Among his top targets will be the members of the media who are critical of him and his decisions—those whom he has repeatedly labeled as “the enemy within.” Predictably, in retaliation, he will seek to overturn New York Times v. Sullivan, the media shield laws, the statute of limitations and legal thresholds for defamation cases, and even the laws regarding legal and illegal wiretapping.
Sadly, the wealthy owners of major news organizations have already started to cave, cowering to the President-elect who is busy recruiting an army of multimillionaires and billionaires to wage his shameless war against, among others, the poor and the powerless and those who write and report the news.
Will the President-elect and his MAGA supporters bust out America like the Mafia busted out savings & loans in the 1980s?
The President-elect’s own appointments, especially to the Department of Justice and the FBI, should serve to warn us to prepare for a return to the darkness of the late 1940s and 1950s with blacklisting, naming names, redbaiting, reckless and malicious smear campaigns, and inducements for neighbors to inform on their neighbors.
Tragically, we are in for a rough ride starting in January 2025 that threatens to corrupt the soul of our nation.
A. New York Times v. Sullivan (Generative AI)
New York Times Co. v. Sullivan was a landmark 1964 Supreme Court case that established the "actual malice" rule, which limits libel lawsuits against public officials:
· The case
The case began when L. B. Sullivan, a Montgomery, Alabama city commissioner, sued The New York Times for libel over a 1960 advertisement that criticized Alabama law enforcement's treatment of Martin Luther King Jr. The ad contained some factual inaccuracies, such as claiming that the police "ringed" the campus where students were protesting.
· The decision
The Supreme Court unanimously ruled in favor of the newspaper, establishing that the First Amendment protects the right to publish statements about public affairs, even if they are libelous. The court also ruled that public officials must prove "actual malice" to win a libel lawsuit, meaning they must show that the speaker acted with "reckless disregard" for the truth.
· The significance
The decision protects the press and others who speak on public affairs, and holds public officials accountable to their constituents. It also allows the press to challenge official truth on hidden subjects.
Wikipedia on New York Times v. Sullivan
B. Shield Law (Generative AI)
The District of Columbia's shield law, the Free Flow of Information Act, protects newsgathering information and sources from being forced to disclose them. The law protects two types of information:
· Source identity: This protection is absolute, meaning there are no exceptions.
· Unpublished information: This protection is qualified, meaning it won't apply in all circumstances.
The law also protects journalists from being forced to testify about sources or information they obtained while newsgathering, even if the information or source is published. However, there are some exceptions, such as when a court can show that the information is relevant to a significant legal issue and that there is an overriding public interest in disclosure.
The District of Columbia also has shield laws that protect access to reproductive and gender-affirming health care. These laws protect against out-of-state investigations, civil liability, and professional discipline.
Code of the District of Columbia
§ 16–4702. Compelled disclosure prohibited: https://code.dccouncil.gov/us/dc/council/code/sections/16-4702
Except as provided in section 16-4703 , no judicial, legislative, administrative, or other body with the power to issue a subpoena shall compel any person who is or has been employed by the news media in a news gathering or news disseminating capacity to disclose:
(1) The source of any news or information procured by the person while employed by the news media and acting in an official news gathering capacity, whether or not the source has been promised confidentiality; or
(2) Any news or information procured by the person while employed by the news media in the course of pursuing professional activities that is not itself communicated in the news media, including any:
(A) Notes;
(B) Outtakes;
(C) Photographs or photographic negatives;
(D) Video or sound tapes;
(E) Film; or
(F) Other data, irrespective of its nature, not itself communicated in the news media.
(Sept. 26, 1992, D.C. Law 9-156, § 2, 39 DCR 5682; July 25, 1995, D.C. Law 11-30, § 4, 42 DCR 1547.)
Wikipedia on shield laws, state-by-state
C. Statute of limitations (Generative AI)
The statute of limitations for defamation varies by state, but most states have a one- to three-year time limit. For example, California and Colorado have a one-year statute of limitations, while Connecticut and Delaware have a two-year statute of limitations. Arkansas has a three-year time limit for libel claims but a one-year deadline for slander.
To win a defamation case, the plaintiff must prove five elements: The statement was published, The statement identifies the plaintiff, The statement harmed the plaintiff's reputation, The statement is demonstrably false, and The person who made the statement was at fault.
The plaintiff must also prove that the person who made the statement acted with negligence or knew the statement was false. Defamation lawsuits can be difficult to win because of the many defenses to defamation, including truth and privilege.
Code of the District of Columbia
§ 12–301. Limitation of time for bringing actions: https://code.dccouncil.gov/us/dc/council/code/sections/12-301
[(a)] Except as otherwise specifically provided by law, actions for the following purposes may not be brought after the expiration of the period specified below from the time the right to maintain the action accrues:
(1) for the recovery of lands, tenements, or hereditaments— 15 years;
(2) for the recovery of personal property or damages for its unlawful detention— 3 years;
(3) for the recovery of damages for an injury to real or personal property— 3 years;
(4) for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment— 1 year;
(5) for a statutory penalty or forfeiture— 1 year;
(6) on an executor’s or administrator’s bond— 5 years; on any other bond or single bill, covenant, or other instrument under seal— 12 years;
(7) on a simple contract, express or implied— 3 years;
(8) for which a limitation is not otherwise specially prescribed— 3 years;
(9) for a violation of § 7-1201.01(11)— 1 year;
(10) for the recovery of damages for an injury to real property from toxic substances including products containing asbestos— 5 years from the date the injury is discovered or with reasonable diligence should have been discovered;
(11) for the recovery of damages arising out of sexual abuse that occurred while the victim was less than 35 years of age— the date the victim attains the age of 40 years, or 5 years from when the victim knew, or reasonably should have known, of any act constituting sexual abuse, whichever is later;
(12) for the recovery of damages arising out of sexual abuse that occurred while the victim was 35 years of age or older—5 years, or 5 years from when the victim knew, or reasonably should have known, of any act constituting sexual abuse, whichever is later.
[(b)] This section does not apply to actions for breach or contracts for sale governed by § 28:2-725, nor to actions brought by the District of Columbia government.
Wikipedia on defamation laws in the United States
D. Wiretapping laws in D.C. (Generative AI)
Intercepting or recording any “wire,” or landline phone conversations, is illegal unless the person recording is a party to the conversation or at least one of the parties has given consent. D.C. Code § 23-542.
Code of the District of Columbia
§ 23–542. Interception, disclosure, and use of wire or oral communications prohibited: https://code.dccouncil.gov/us/dc/council/code/sections/23-542
(a) Except as otherwise specifically provided in this subchapter, any person who in the District of Columbia —
(1) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication;
(2) willfully discloses or endeavors to disclose to any other person the contents of any wire or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication; or
(3) willfully uses or endeavors to use the contents of any wire or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire or oral communication; shall be fined not more than the amount set forth in [§ 22-3571.01] or imprisoned not more than five years, or both; except that paragraphs (2) and (3) of this subsection shall not apply to the contents of any wire or oral communication, or evidence derived therefrom, that has become common knowledge or public information.
(b) It shall not be unlawful under this section for —
(1) an operator of a switchboard, or an officer, agent, or employee of a communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication, in the normal course of his employment while engaged in any activity which is a necessary incident to the rendering of his service or to the protection of the rights or property of the carrier of such communication, or to provide information, facilities, or technical assistance to an investigative or law enforcement officer who, under this subchapter, is authorized to intercept a wire or oral communication, but no communication common carrier shall utilize service observing or random monitoring except for mechanical or service quality control checks;
(2) a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication, or where one of the parties to the communication has given prior consent to such interception; or
(3) a person not acting under color of law to intercept a wire or oral communication, where such person is a party to the communication, or where one of the parties to the communication has given prior consent to such interception, unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States, any State, or the District of Columbia, or for the purpose of committing any other injurious act.
Wiretapping laws, state-by-state
This sad and dangerous truth needs to be screaming in the skulls of every American. Thanks for this, Dan.
I know, it was a harrowing time for you.