LIke it or Not, "More Freedom" Might be the Only Way to Deal with Perceived Unfairness

The U.S. Supreme Court, in 376 U.S. 254 (1964) NEW YORK TIMES CO v. SULLIVAN established a principle that public officials cannot claim damages for “libel” against media entities for defamatory falsehoods “relating to his official conduct unless he proves that the statement was made with "actual malice."

In other words, a plaintiff cannot sue because a media entity published something found to be incorrect, but only if the published material was created with “malice.” It is not enough that something we might consider “libelous” was said; only that it was said intentionally, with malice and a “reckless disregard” for the facts of the matter. 

When a statement concerns a public figure, according to the Court, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity.

Hence the difficulty public officials (or public figures generally) face when suing a media outlet for libel: the plaintiff must prove malicious intent, not simply that something is “false.” 

Of course, such Constitutionally-based protections and rulings were developed before social media.  Whether social media calls for a rethink is an issue. Should social media be covered by the same rules as “media?” Is the “malicious intent” requirement too broad? 

More broadly, does the First Amendment protection of free speech only apply to government suppression of free speech, or to suppression by other means? Right now, social media are considered covered by the First Amendment in terms of all content moderation. They are classified as “speakers” for purposes of First Amendment protections. 

Perhaps there is no other way to consider them. Even if they act in ways many consider biased or unfair, there is a First Amendment argument that this is their right. 

And earlier government efforts to mandate a “Fairness Doctrine” have generally been considered failures, and even unnecessary in an era where so many outlets for speech exist. Mandating “fairness” might prove more onerous or ineffective than not mandating it. 

Still, media law and First Amendment law have evolved with the emergence of new media. The initial responses have often been to “limit freedom.” Over time, law has generally moved in the direction of “more freedom.” 

Even if not considered by many to be “fair,” this might be the only Constitutionally-correct approach: more freedom.