As The Daily Caller reports and as independently verified by documents obtained by The Daily Wire, conservative television network One America News Network (OANN) has issued cease-and-desist retraction letters to both The Daily Beast and MSNBC’s Rachel Maddow. The letters, which were sent last Thursday, allege that Maddow and The Daily Beast’s Kevin Poulson alike defamed OANN by linking the network to the Russian government and, in the case of Maddow, decrying the network as “literally … Russian propaganda.” The cease-and-desist letters give the recipients a deadline of August 15 to issue public retractions.
The involvement of a prominent conservative media outlet in a defamation dispute against other media personalities provides a good opportunity to delve into the state of defamation law in the United States. Specifically, it is important to understand why a hypothetical defamation lawsuit filed by OANN would face an uphill battle under existing U.S. Supreme Court precedent — but why that might not be the case (perhaps especially as applied to Maddow) under an originalist understanding of the First Amendment.
In 1964, the Supreme Court handed down its ruling in New York Times Co. v. Sullivan and fundamentally transformed defamation law in the U.S. In New York Times, the Court held that the First Amendment limits the ability of public officials (soon extended to all “public figures”) to successfully sue for defamation. Specifically, the Court held that, to successfully hold a defendant liable in a defamation claim, a public figure must prove “actual malice” in addition to the traditional elements of a defamation cause of action under common law.
The basic problem with the “actual malice” standard — namely, that a defamation plaintiff must also demonstrate that the allegedly defamatory statement was made either with knowledge of its falsity or with a reckless disregard of whether it was true or false — is that it was completely fabricated by the Court and is in no way whatsoever textually derived from the First Amendment.
Whatever one may feel about what defamation policy should be, it is clear that, under the original understanding of the Constitution at the time of its ratification, those policy decisions were properly left for state legislatures to statutorily modify (or not) the common law tort of defamation. Instead, as Gregory Sullivan opined at National Review on the decision’s 50th anniversary, the Court “imposed an extraconstitutional standard based on its own libertarian reading of the First Amendment.” The Court thereby effectuated a classic judicial power grab, all too emblematic of the Warren Court era, based on a deeply tendentious — and, the more cynical among us might say, willfully disingenuous — reading of a key Bill of Rights provision. In fact, at the time of the American Founding, defamation law existed in perfect harmony with the enactment of the First Amendment. As Sullivan explained:
Thus was the established balance between responsible speech and reputation — a Madisonian balance — utterly subverted. The Founders had carefully crafted constitutionally protected speech rights against the backdrop of state libel laws. For nearly two centuries, this arrangement has proved perfectly workable; no one ever claimed that the country did not enjoy a free press. What Justice Brennan did [in New York Times] was recklessly free the press from responsibility for its mistakes. In the Warren Court way, liberty became license.
The late Justice Antonin Scalia quite famously loathed New York Times, explaining to interviewer Charlie Rose in 2012 that New York Times had no basis in the text of the First Amendment. “Nobody thought that libel, even libel of public figures, was permitted, was sanctioned by the First Amendment,” Scalia explained.
This past Supreme Court term, fellow originalist stalwart Justice Clarence Thomas also penned a lengthy criticism of New York Times. The criticism, which took the form of a concurrence in a denial of a writ of certiorari in the case of McKee v. Cosby, was widely covered in February by popular media. Thomas pulled no punches, eviscerating New York Times as a “policy-driven decision masquerading as constitutional law.” Thomas carefully explained how the Court, in New York Times, erroneously federalized an important area of tort law that had previously been the exclusive province of the states. As Thomas wrote, the “constitutional libel rules adopted by th[e] Court in New York Times and its progeny broke sharply from the common law of libel,” and there is nothing in the original public meaning of the First Amendment to suggest that the provision was understood to federalize that common law of libel and remove it as a state issue. As Thomas concluded, the legal situation would reach an appropriate equilibrium if New York Times were overturned and the original public meaning of the First Amendment, as applied to defamation law, were restored. After all, the “States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”
If OANN ultimately decides to pursue litigation against The Daily Beast and Maddow, it would presumably need to meet the “actual malice” standard promulgated by the black-robed oracles in New York Times. To be sure, that would be an uphill battle. But it is very, very far from obvious whether such an uphill battle ought to be constitutionally mandated.