The Case for a Federal Defamation Regime
abstract. This Essay argues that Congress can and should replace the existing state-law defamation regime with a federal defamation law. Doctrinally, a federal regime would better fit the modern, boundaryless digital-communications paradigm. Practically, it would benefit press organizations by ensuring their access to the federal courts in defamation cases.
When President Trump was in office, he repeatedly expressed an interest in developing a punitive federal defamation regime.1 Legal scholars dismissed his statements, pointing out that no federal libel law exists and claiming that Congress lacks the power to limit First Amendment protections.2
But perhaps there is something to the suggestion that Congress federalize defamation law. Rather than limit speech (as President Trump might have preferred), a federal libel law could benefit the press and the public discourse by creating a uniform set of rules, guaranteeing defamation claimants access to the federal courts, limiting opportunities for forum shopping, and reducing the risk of catastrophic judgments. This Essay explores the theoretical and practical justifications for replacing the existing state-oriented defamation regime and establishing a single federal defamation law that better fits the modern digital-communications paradigm.
First, in Part I, I introduce defamation law and consider why New York Times v. Sullivan,3 the seminal Supreme Court case that established the modern libel regime, is no longer sufficient to regulate the marketplace of ideas. In Sullivan, the Court constitutionalized the field of libel law, holding that the First Amendment provides a defense against defamation claims and that a public official must prove that an untrue statement was made with “actual malice.”4 While Sullivan’s “actual malice” standard may have provided sufficient protection to the traditional press in a locally oriented media environment, it is wholly inadequate in a world where technology allows any publication to reach a global audience. Although diversity jurisdiction should help manage interstate value conflicts by allowing for resolutions in federal court, defendants’ ability to remove cases to these fora is limited by permissive procedural rules.5 Moreover, states drastically vary in how their procedures address speech-suppressive “strategic lawsuits against public participation” (SLAPPs).6 Because plaintiffs have wide latitude in selecting the fora for their claims, media organizations must be prepared to defend against litigation in nearly every state, no matter how unfriendly the rules—or the people applying them—are to outside journalists.
Part II of this Essay examines two recent high-profile cases that highlight this problem and show that the existence of a constitutional defense is no longer enough to protect the press. In Bollea v. Gawker Media, LLC,a wealthy third party, motivated by personal animus against a Manhattan media company, leveraged a comparatively under-resourced plaintiff and a highly sympathetic Florida court to bankrupt a popular publication.7 Though Gawker involved a narrow privacy claim, it pioneered a model for wealthy individuals to use tort law and distant state juries to inflict serious harm upon media organizations that they dislike. The possibility that media organizations would continue to face massive claims brought in state courts far away from their headquarters was realized in Beef Products, Inc. v. ABC,where ABC settled a libel claim in excess of $170 million, even though the broadcaster maintained that its reporting was accurate.8Gawker and Beef Products are not anomalies. Since their filing, multiple media outlets have had to defend against multi-million- and billion-dollar lawsuits in outside state jurisdictions.9
Finally, in Part III, I argue that a federal defamation law could remedy the problem of devastating litigation against the press, and that enacting such a law is within Congress’s Commerce Clause powers.10 At minimum, a basic defamation-preemption scheme would give defendants federal-question jurisdiction to get out of remote state courts. Such a law would provide much-needed uniformity at a time when speech has become placeless, and it would limit forum shopping—the practice of plaintiffs choosing the friendliest forum based on substance, procedure, and cultural sensibilities.
Federalizing defamation law would be a radical change. It entails real risks, such as potentially overriding the anti-SLAPP protections that already exist in certain states. But it is becoming increasingly clear that the status quo, in which distant state juries can bankrupt national media companies, is untenable and threatens press freedom. And no other lasting help is on the way. While state-by-state efforts to enact press-protective laws offer model policies, their patchwork nature leaves media defendants vulnerable to suit in more hostile localities, and federal courts have been reluctant to recognize such protections in defamation cases. Ultimately, our ever-more-connected communications ecosystem has outgrown the existing defamation regime, and Congress is the actor best equipped to restore predictability and proportionality into this area of law.
I. the constitutionalization of libel law
Despite its muddled treatment in defamation jurisprudence, the concept of “community” is the linchpin of the defamation tort. When an individual seeks to protect or rehabilitate her reputation by bringing a defamation claim, a judge applying the law (who comes from her community) and a jury finding the facts (also composed of members of her community) determine what, if any, reputational interests to vindicate. When opposing parties come from communities that abide by different norms, irreconcilable conflicts can result.
New York Times v.
Sullivan—the seminal Supreme Court case that established the modern libel
regime—arose from one such conflict between local and national
values.11 While Sullivan broke ground by constitutionalizing the field of defamation law through the “actual malice” rule, a third of the Court nonetheless anticipated that it might not adequately protect outside press that criticized the values of local judges and juries.12 Sullivan also recognized that different procedural rules should apply in defamation cases to encourage free speech.13 However, the procedural changes that Sullivan implemented were designed for a locally oriented media paradigm, which has since given way to a boundaryless media sphere.
A. Defamation as a Local Wrong Grounded in Community Understanding
The tort of defamation is, on one level, intuitive. According to the Restatement (Second) of Torts, a statement is defamatory if it is false and “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”14 Put simply, it is wrong to tell harmful lies, and those who do so should be punished. Anyone who has been the subject of false gossip recognizes that it can injure by causing alienation, identity destabilization, loss of social standing, or loss of livelihood.15
Yet as basic a concept as defamation is, it is difficult to circumscribe this injury in the law. Defamation’s constituent elements of “reputation,” “community,” and “harm” are abstract and subjective, and courts and state legislatures have done little to shape the tort of defamation itself, allowing “its inconsistencies [to] gr[o]w multifoliate in the variety of soils provided by federalism.”16 Consequently, defamation doctrine is a “veritable ‘fog of fictions, inferences, and presumptions,’” organized around contingent and indeterminate concepts.17 Critically, the courts “have not attempted to define ‘reputation’ as an abstract entity,”18 disagreeing on whether “reputation” is a property interest or an interest in “honor” or “dignity”19 and sidestepping the issue of differing definitions of “reputation.”20
To complicate matters further, “reputation” is “socially constructed” and “defined more by its effect on the others who make up the plaintiff’s community than by its effect on the individual plaintiff.”21 Accordingly, reputation may be conceived of as a “public good,”22 meaning that unfairly damaging a reputation is not just a harm against the individual, but a degradation of “the value and reliability” of the information upon which a community relies and thus potentially a “devalu[ation of] community identity” itself.23
And who forms a “community” anyway? As mentioned above, courts have failed to define the term with any rigor.24 Instead of using geographic lines or objective indicia like population size, courts have generally and largely correctly intuited that culture is the defining feature; yet, courts have gone astray by articulating this idea in such general terms that it essentially amounts to a reasonable-norm-enforcer standard, allowing judges and juries to apply their own sensibilities as to who makes up a community and what that community thinks.25
Although geography and population have received scant consideration in defining “community” for the purposes of a defamation action, they inevitably inform the inquiry.26 This is because the “American tradition of trial by jury . . . necessarily contemplates an impartial jury drawn from a cross-section of the [defendant’s] community.”27 Thus, the idea of “community” already inheres in a defamation determination through its deciders, who are selected from a clearly demarcated political subdivision with its own unique culture and character.28 Even in bench trials, a judge’s understanding of “community” is inevitably informed by her own sense of local identity.29
In many cases, this implicit judgment as to who forms the “community” is appropriate. For example, if a city comptroller brings a libel claim against his local newspaper, both of the parties will come from the same region as the judge or jury deciding the case. But when the parties come from different regions, one of them may lack a shared identity with their fact finder. Further, because the concept of reputation is actually derived from a community insofar as reputation is effectively a community judgment, and because community identity is “devalue[d]” by unflattering false statements,30 there is a special risk to outsider defendants that the fact finder will not only feel kinship with the plaintiff, but also see the allegedly defamatory statement as personally harmful. As I discuss below, this kind of conflict was present in Sullivan, and it is only more likely to occur today because internet publication “makes it easier for content to cross cultural and geographical borders.”31
B. New York Times v. Sullivan and the Emerging Conflict Between Local Norms and National Coverage
Until 1964, the tort of defamation was a local creature that implicated no constitutional concerns, operating “as a vehicle through which communities [could] perpetually reexamine and communicate their values.”32 That changed when the Supreme Court decided New York Times v. Sullivan, articulating a First Amendment defense to defamation claims that reflected national interest in such cases.33
Sullivan has been heralded as a victory for free speech.34 This Essay argues that it is also a prime early example of an ongoing conflict that has since reached an untenable point for the press, illustrating how an aggrieved community can seek to enforce its norms by punishing national critics.35 The case concerned an advertisement in the New York Times that was commissioned by a group of civil-rights advocates from across the country.36 The advertisement described instances of police hostility toward activists, stating that “truckloads of [armed] police” had “ringed” Alabama State College and that officers had improperly arrested Dr. Martin Luther King Jr. seven times.37 The advertisement named no specific perpetrators.38
Three weeks later, L.B. Sullivan, the white police commissioner of Montgomery, Alabama, brought a libel suit against the Times.39 Claiming that the advertisement’s use of the term “police” could be assumed to “refer to him,” Sullivan asserted that the advertisement falsely maligned the integrity of a public official, which was libelous per se under Alabama law, and claimed $500,000 in damages.40 The state court established jurisdiction on the basis that approximately four hundred copies of the Times had circulated in Alabama and that the newspaper employed stringers in the state.41
The trial environment was less than favorable to the Times. The paperstruggled to find local counsel, and its lead attorney had to stay in a “motel room under an assumed name.”42 The judge in the case had previously “issued orders forbidding the [NAACP] to do business in Alabama” and had personally participated in celebrations of the Confederacy.43 The jury was all white,44 and courtroom seating “was segregated.”45 When witnesses were called, none testified to “actually believ[ing] the statements in their supposed reference to respondent,” and Sullivan otherwise “made no effort to prove that he suffered actual pecuniary loss as a result of the alleged libel.”46 But the jury nonetheless awarded Sullivan full “presumed” and punitive damages.47 The Alabama Supreme Court affirmed the judgment.48 The Times appealed to the Supreme Court, arguing that the lower-court ruling “imposed a forbidden burden on interstate commerce and abridged the freedom of the press” in violation of the First Amendment.49
A unanimous Court agreed with the Times, holding that “neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct.”50 It also established a “federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”51
Justice Black, however, went further in his concurrence,
explicitly recognizing a dangerous dynamic at play—one where members of one
political subdivision could use litigation to stifle national debate.52 He described state libel
laws as an existential threat to a “press virile enough to publish unpopular
views on public affairs and bold enough to criticize the conduct of public
officials.”53 He worried that this
“technique for harassing and punishing a free
press . . . [could] be used in other fields where public
feelings may make local as well as out-of-state newspapers easy prey.”54 According to Justice Black,
Sullivan’s facts only “emphasize[d]
the imminence and enormity of that threat.”55 The Times’s connection to Alabama was tenuous, given its miniscule
readership there.56 Further, Montgomery’s white residents
had demonstrated a “widespread hostility to desegregation,” which extended to
“so-called ‘outside agitators,’ including papers like the Times.”57
To Justice Black—a native Alabaman—Sullivan’s claim of reputational injury was
risible: “Viewed realistically, this record lends support to an inference
that . . . Commissioner
Sullivan’s . . . prestige [was]
likely . . . enhanced.”58 The sizeable damages award
seemed to be intended to punish the Times
for carrying an antisegregation message, rather
than to rectify reputational
harm.59 Justice Goldberg separately shared this sentiment, observing that the case “conclusively demonstrate[d] the chilling effect of the Alabama libel laws on First Amendment freedoms in the area of race relations.”60
With these concerns in mind, both of the Justices, along with Justice Douglas, would have adopted a rule of “absolute immunity for criticism of the way public officials do their public duty.”61 They feared that anything less could lead to the weaponization of libel litigation whenever judges and juries themselves disagreed with a message’s content and believed that the message attacked their own identities. As Justice Goldberg put it, “vigorous criticism by press and citizen of [government] conduct . . . will soon yield to silence if officials in control of government agencies, instead of answering criticisms, can resort to friendly juries to forestall criticism of their official conduct.”62 Indeed, the ultimate disposition of the case was a silent concession to this point. Rather than remand for application of the new “actual malice” rule, the Court took the unusual step of reviewing the evidentiary record “to determine whether it could constitutionally support a judgment” against the police commissioner for the purposes of “effective judicial administration.”63 The Court’s message was clear: it did not trust Alabama courts to apply its new rule to the facts of the case.
C. Sullivan as a Procedural Fix Crafted for a Specific Techno-economic Paradigm
While Sullivan transformed substantive defamation law by announcing the “actual malice” test, it also altered the procedure in libel cases in three consequential ways that fit its contemporary media environment.
Two of these changes were intentional. First, Sullivan placed a burden on plaintiffs to show actual malice with “convincing clarity.”64 Second, it treated actual malice as a constitutional fact entitled to independent appellate review to avoid “forbidden intrusion on the field of free expression.”65 These two procedural changes effectively acknowledged that the interests at stake in defamation cases were “‘particularly important’ and ‘more substantial than mere loss of money,’” and that juries might be predisposed against libel defendants.66 Critically, these standards also offered recognition that procedure was especially important in speech cases and that defamation law may require its own unique form of “First Amendment ‘due process’” distinct from Fifth and Fourteenth Amendment due process.67
Sullivan’s thirdchange to the procedure of defamation litigation may have been inadvertent. By focusing on the defendant’s state of mind, the actual-malice rule makes defendants the primary targets of discovery, exposing them to significant costs and intrusions.68 The Court predicted these effects at the time, but the drawbacks of increased discovery seemed minor compared to the Sullivan rule’s substantive protections, particularly given the existing media environment.69 Sullivan came down in an analogue world where the local press thrived and mass media was still fairly new.70 For much of the twentieth century, “small, family-owned dailies dominated the American newspaper industry.”71 In the early 1960s, the New York Times—a dominant national newspaper of the period—only published about one percent of newspaper copies in circulation because local consumers tended to consume their own local media.72 Conflicts between publications like the Times and distant, hostile juries were thus the exception, not the rule.
The reporting process itself also differed back then. The primary objects of discovery would be physical notes, not vast caches of digital files like texts and emails.73 The caution that a reporter should “[d]ance like nobody is watching, but email like it may one day be subpoenaed and read aloud in a deposition” was yet unintelligible.74
II. sullivan’s practical limitations
While Sullivan has been celebrated, some have critiqued the decision for insufficiently protecting speech.75 This Part considers whether Sullivan accomplished its goals, examining subsequent trends in defamation litigation and discussing the recently realized threat of weaponized defamation suits.
A. Libel Litigation in Sullivan’s Wake
For two decades, the actual-malice constitutional rule counterbalanced the common law’s amorphous treatment of community and reputation. In the 1970s, the tort of defamation “appeared headed for obsolescence.”76 By the early 1980s, the number of defamation suits had decreased, and they “frequently ended in defeat for the plaintiff” when they did go to trial.77
But then an “astonishing shift” occurred, where courts began to see a “dramatic proliferation of highly publicized libel actions brought by well-known figures who s[ought], and often receive[d], staggering sums of money.”78 As media became more nationalized, trends of defendant losses and ever-increasing damages emerged.79 Losses were most pronounced in state courts.80
This trend has accelerated in the past decade.81 The median award granted in defamation cases against media companies this decade is $1.1 million, a fivefold increase since the 1980s.82 When defendants lose, they are also less likely to fight back. In the 1980s, media defendants almost always appealed verdicts against them.83 Now, they decline appeals in nearly a quarter of cases,84 settling after trial instead.85 This suggests that media defendants are less confident about their litigation prospects and that the costs of continued litigation may be too great amid this uncertainty.
These dynamics are especially evident in state courts, where the majority of defamation cases occur.86 Procedures and substantive protections vary by state,87 making it difficult for reporters to bulletproof their stories in anticipation of faraway claims. States differ in the extent of permissible discovery, the admissibility of expert testimony, and the availability of interlocutory appeals and defensive early-termination proceedings.88 Some states have codified privileges, like the “fair report privilege,” that protect publications covering official proceedings,89 where others lack such protections. And as a practical matter, media defendants fare worse in state courts on average.90 State courts have awarded all of the top ten final awards in history against media defendants.91 And while initial awards are higher in federal court, the average final state-court award against a media defendant since 2010 was nearly twenty times the average federal-court award, at $16.5 million in state court compared to $830,000 in federal court.92
B. The Recent Use of Libel Actions as Catastrophic Weapons
A $1.1 million award is now starting to look cheap. Two recent cases—involving Gawker and ABC—have highlighted the risk of being an outsider media defendant in state court and demonstrated how media torts can be weaponized against the press with catastrophic consequences. Other similarly high-stakes cases have followed.93
1. Gawker’s Loss Against Hulk Hogan
When a $140 million verdict came down against Gawker in 2016, some legal scholars dismissed it as an aberration, largely irrelevant to the First Amendment and the legal status of the press, for two reasons.94 First, the claims concerned privacy, not defamation.95 And second, the case involved an unsympathetic defendant.
In 2012, Gawker published a sex tape featuring Hulk Hogan and a Florida woman named Heather Clem.96 Hogan responded by suing Clem in Florida state court.97 Hogan also filed a diversity action against Gawker in federal court and twice moved for a preliminary injunction for the sex tape’s retraction.98 The judge rejected both motions, holding that the video was of public concern, in part because of Hogan’s fame as a wrestler, and that such an order would be an “unconstitutional prior restraint.”99 After these setbacks, Hogan dropped his federal claim and joined Gawker to the state-court proceeding.100
The case then turned around for Hogan. The federal district court accepted Hogan’s argument that a sufficient “logical relationship” existed between the Gawker and Clem claims for a Florida court to assert jurisdiction over the publication,101 even though Hogan would ultimately settle with Clem before trial.102
The Florida state court was not a friendly forum for Gawker. Hogan was a “home-town hero” who starred in a four-season reality television show around his life in Tampa.103 Gawker, which began as a Manhattan media blog, was unknown to the “vast majority” of the jury.104 Gawker’s owner Nick Denton anticipated that Tampa locals would likely see its staff as “mean, bitchy . . . bloggers, run by someone who [would] probably be portrayed as a New York pornographer and foreigner.”105 The judge also appeared ill-disposed toward Gawker,106 accepting Hogan’s third preliminary-injunction motion without even “mak[ing] any findings at the hearing or in its written order to support its decision.”107 With these dynamics in play, court watchers were prepared for a “surreal spectacle” that “represented a peculiar clash of worlds.”108
During the trial, Hogan’s attorneys pressed the narrative that Hogan was someone who had risen from an “impoverished childhood in Tampa” to “earn a place in the world, only to be humiliated by a sniggering group of urbanites.”109 As many expected—including Gawker’s own legal team—the jury sided with Hogan.110 The jury exceeded the damages requested and awarded Hogan $140 million, of which $25 million were punitive.111
At the trial’s conclusion, rumors swirled that more was driving the lawsuit than Hogan’s own desire for vindication.112 Reporters later revealed that Silicon Valley venture capitalist and billionaire Peter Thiel was “secretly covering” Hogan’s legal expenses.113 Thiel later admitted that he had paid $10 million to cover Hogan’s legal expenses and that he “funded a team of lawyers to find and help ‘victims’ of the company’s coverage mount cases against Gawker” with the goal of debilitating the publication, which had outed him as gay in 2007.114
The suit’s ramifications went beyond a loss of tabloid
coverage. Although Gawker often wrote voyeuristic stories, it also produced
political journalism.115 For instance, Gawker aggressively covered President Trump, reporting on “his racism, his draft-dodging, and the mainstream media’s failure to take his toxicity seriously” as early as 2011.116 The Hogan case meant that this kind of reporting would disappear along with the celebrity gossip.
Some commentators also viewed the suit as having a political
valence. Thiel was one of Trump’s “most prominent backers in the 2016 election
campaign.”117 Hogan’s attorney, Charles
Harder, added former First Lady Melania Trump and the late Fox News founder
Roger Ailes to his client roster around the time of the 2016 election,118 and eventually Trump
himself.119 This all occurred
alongside Trump’s “organized campaign to discredit the American press” by
describing critical stories as
“fake news.”120 Trust in traditional media had split along ideological lines: in a 2016 poll, only fourteen percent of Republicans reported that they trusted the mass media, compared to fifty-one percent of Democrats.121 With media approval so low, litigation against the press operated as a negative-feedback loop, where juries “reflect[ing] public sentiment” would punish outlets they disfavored, which would in turn further damage the public’s estimation of the press.122 Commentators observed that for “superrich” plaintiffs who could afford the high cost of defamation litigation, suing a media outlet could serve as “an investment, with the payoff being, at a minimum, the expense and time required for the other side to produce documents and sit for depositions.”123
The ultimate payoff for a plaintiff with ulterior motivations is, of course, the closure of an outlet. Thiel got that satisfaction with the Gawker verdict. To stay the judgment and undertake an appeal, Gawker needed to post a $50 million appeal bond.124 Lacking the funds to do so, the company declared bankruptcy two days after the verdict was finalized.125
2. ABC’s Settlement over “Pink Slime”
The Gawker litigation turned out to be a bellwether, showing how the right combination of deep pockets and a favorable venue could be weaponized against the press. A year after the verdict against Gawker, the Walt Disney Company paid Beef Products, Inc. (BPI) more than $177 million to drop a $1.9 billion defamation suit126 against its subsidiary ABC News for describing BPI’s beef as “pink slime.”127 Although ABC stood by its reporting to the very end,128 the case illustrates that even a giant of the traditional media, reporting on a matter of public concern and protected by the actual-malice standard, can suffer a stratospheric loss when a committed plaintiff in the right venue sues.
The lawsuit concerned a 2012 ABC investigation that found meat trimmings “[o]nce only used in dog food and cooking oil” were being “sprayed with ammonia” and mixed in with supermarket ground beef.129 The reporting was based in part on interviews with two food scientists, who had previously worked for the United States Department of Agriculture (USDA) and written an internal memo describing the trimmings as “pink slime.”130 When the USDA declined to require consumer labels for the trimmings, the scientists publicly objected.131 For its investigation, ABC also talked to professors, USDA press officers, supermarket representatives, consumers, and a former BPI employee.132 ABC also contacted BPI itself and published reactions from meat industry representatives.133
The Columbia Journalism Review described ABC’s reporting as “well sourced” and observed that the “most serious criticisms were presented as matters of opinion.”134 Moreover, ABC was not alone in its reporting on the processed meat trimmings: the New York Times135 and Mother Jones136 had previously engaged in similar reporting, and the phrase “pink slime” had appeared 3,800 times in media reports before ABC aired its stories.137
But ABC was the only media outlet that BPI sued over its “pink slime” coverage. BPI filed a 257-page complaint in South Dakota state court in 2012,138 asserting twenty-seven counts from defamation to product disparagement.139 That last claim exposed ABC to treble damages because South Dakota specifically penalizes disparagement, or knowingly making false statements that an “agricultural food product is not safe for consumption.”140 That “local protection statute” is understood to make it “extremely risky for the media . . . to go in and cover that industry.”141
ABC immediately sought to remove the case to federal court on the grounds that the real parties in interest were diverse citizens.142 ABC’s headquarters were in New York, and it was incorporated in Delaware.143 The sources named as codefendants were residents of Maryland, Virginia, and Arkansas.144 BPI was incorporated in Nebraska and maintained its headquarters in South Dakota.145
On its face, the case was a prime candidate for removal. But
BPI had joined two of its subsidiaries—incorporated in Delaware—as coplaintiffs, destroying diversity with
ABC.146 ABC argued that this amounted to fraudulent joinder because the BPI subsidiaries were not discussed in any of the reporting.147 The District of South Dakota rejected this argument, reasoning that the “fact that a plaintiff’s claim may lack legal or factual merit does not necessarily mean that he lacks standing to assert the claim as a real party in interest”148 and that “[a]ll doubts about federal jurisdiction should be resolved in favor of remand to state court.”149 Even though ABC had no presence in South Dakota, the state’s own jurisdiction over the network was uncontroverted: the Supreme Court established in Keeton v. Hustler that publications may be sued in any state where their material is generally accessible.150 And as extended through Calder v. Jones’s “effects test,” this principle applies to individual journalists regardless of whether they have ever been to the forum state.151 By dint of broadcasting nationally and publishing its material online, ABC had satisfied these conditions.
If ABC had succeeded in removing the case to federal court, trial proceedings would have occurred eighty miles from BPI’s plant and the jury would have been drawn from a quarter of South Dakota’s 870,000-person population.152 The jury might still be more predisposed to BPI than one in New York or Delaware, but it would not have been drawn from the meat-processing plant’s immediate neighborhood. As it was, the jury was selected from a 15,000-person county where BPI was a major employer.153 In his opening statement, ABC’s lead attorney “acknowledged the broadcasting company has no local ties,” directly telling the jury “[n]o one that I will put on the stand is from here—we’re all outsiders.”154
Halfway through the eight-week trial, the parties abruptly announced a settlement.155 ABC had not yet called its witnesses.156 In a statement, ABC “maintained that [its] reports accurately presented the facts and views of knowledgeable people about this product,” but that “continued litigation” was “not in the company’s interests.”157 A month later, ABC’s parent company Disney admitted to paying at least $177 million to settle the case, a staggering figure that did not include the amount paid by Disney’s insurers.158 Even with the total payout unknown, this was enough to “rank [the ‘pink slime’ agreement] as the largest settlement ever paid out in a media defamation lawsuit in U.S. history.”159
Press advocates viewed the outcome as disheartening, a “signal of vulnerability” that could invite future lawsuits and “crippling legal expenses,” as it telegraphed that “news organizations will cave under the pressure of litigation” if the damages claimed are astronomical, “even in cases in which they have good defenses.”160 In theory, Sullivan’s standard should have protected ABC from such a catastrophic settlement, but the risk was too great that it would be misapplied on BPI’s “home turf.”161
Since the “Pink Slime” lawsuit was brought, multiple New York-based media defendants have been haled into states like Delaware, Florida, and West Virginia to defend against high-stakes claims.162 Another state—Virginia—has even developed a reputation as a popular forum for out-of-state litigants, attracting a “string of splashy defamation claims by politicians and the A-list star seeking nearly $1 billion in damages in [its] courts [in 2019], even though many of the cases have only loose connections to the state.”163 Indeed, the playbook used against Gawker is now being used against social-media platforms, individual news commentators, and anonymous Twitter users.164 Not all of these lawsuits will succeed. But the simple cost of defending against them and potentially facing burdensome discovery has its own chilling effect.165 The hope that the Gawker and “Pink Slime” cases would be outliers seems increasingly misplaced.
III. a national libel law fitted to a new paradigm
As both a theoretical and practical matter, the existing state-law defamation regime needs correction.166 This Part recommends that Congress enact a federal defamation law, and addresses possible objections to such a preemption scheme.
A. Congressional Reform
This Essay has established that the existing defamation regime is both doctrinally incoherent and unworkable in practice. The question remains: which actor is best equipped to fix it? The Supreme Court has generally shown disinterest in further developing defamation doctrine, and state legislatures can only change the rules for their respective state courts. Congress is thus the best actor to initiate reform.
In the past twenty years, the Supreme Court has heard only one defamation case, treating the doctrine as settled and preferring instead to address other First Amendment questions.167 Not since the pre-internet era has the Supreme Court meaningfully addressed the effect that jurisdiction might have on this body of law, brusquely “reject[ing] the suggestion that First Amendment concerns enter into the jurisdictional analysis.”168 Judge Matheson has argued that this “failure to consider [F]irst [A]mendment values relevant to a court’s personal jurisdiction over distant defamation defendants represents the greatest insensitivity in these cases to the relationship between substance and procedure.”169 The problem has only intensified since Judge Matheson made this observation three decades ago because communities now frequently “exist across state boundaries, communities bleed into other communities, and communities may exist in new platforms” like the internet.170
State legislatures have been more eager to tackle the problem of reforming defamation law, with the majority of states enacting laws to penalize vexatious speech-suppressive litigation—otherwise knowns as “strategic lawsuits against public participation” (“SLAPPs”).171 But by its very nature, disaggregated state anti-SLAPP reform offers only a piecemeal solution that fails to protect defendants when parties claim jurisdiction in states without these safeguards. Further, anti-SLAPP laws vary in strength. Some states have broadly written statutes that protect any “conduct in furtherance of the exercise of the constitutional right” of free speech concerning a public issue and provide for fee-shifting and special early motions requiring a plaintiff to show a probability of winning a suit.172 Others are limited to situations involving “permit[s], zoning change[s], lease[s], license[s], and certificate[s]”173 and have no procedural levers for disincentivizing harassing claims.174 Even though many media outlets are based in states with strong anti-SLAPP statutes, like New York and California, they remain vulnerable to horizontal forum shopping and may be haled into jurisdictions with less favorable defamation laws and courts.175
Reliance on state anti-SLAPP reform also poses a vertical forum-shopping problem related to favorable procedural rules (as distinct from the horizontal forum-shopping problem earlier described). That is because some federal courts have ruled that their provisions conflict with the Rules Enabling Act of 1934—that is, that the protections they offer are more procedural than substantive, akin to discovery stays and special dismissal motions.176 For example, the Ninth Circuit has concluded that California’s anti-SLAPP law cannot stay discovery in federal courts,177 and the Second Circuit has rejected the application of California’s anti-SLAPP law entirely “because it increases a plaintiff’s burden to overcome pretrial dismissal, and thus conflicts with Federal Rules of Civil Procedure 12 and 56.”178 These rulings have rendered anti-SLAPP provisions largely impotent in federal court. This effectively means that even if all fifty states adopted a uniform anti-SLAPP law, there would still be a significant disparity in how federal and state courts process defamation actions, even apart from the horizontal forum-shopping problems already described.179
Given the Supreme Court’s inaction and state legislatures’ inability to enact national reform, Congress is the best actor to intervene and address the general “lack of uniformity” in defamation law at a time where all digital speech is free of jurisdictional bounds—including any journalism that is published on a website, along with any debate among private citizens conducted on social-media platforms.180 Congress has the authority to do so and has already expressed some appetite for altering the procedures used in defamation cases.181
B. The Authority: Interstate Speech as Interstate Commerce
Congress has the authority to pass a federal defamation law through its Commerce Clause powers.182 It may and should preempt state laws in this field through the Supremacy Clause.183 Admittedly, there is some irony to the idea of creating a federal cause of action for defamation in order to vindicate the First Amendment values of limiting self-censorship and encouraging “vigor[ous] . . . public debate.”184 After all, the Constitution explicitly provides that Congress “shall make no law . . . abridging the freedom of speech.”185 But the Supreme Court has never suggested that defamation laws necessarily violate the Constitution, and it has left existing defamation laws intact despite incorporating the First Amendment against the states.186 Surely, if state defamation laws are permissible under the Constitution, then a federal law must be as well.
For as long as mass media has existed in the United States, Congress has regulated it through its Commerce Clause power, which provides the “authority to regulate and protect the instrumentalities of interstate commerce.”187 In 1910, Congress passed the Mann-Elkins Act and authorized the Interstate Commerce Commission to regulate the rates charged by telephone and cable companies.188 The Communications Act of 1934 gave the Federal Communications Commission (FCC) “broad authority” over wire and radio communications that crossed state lines “to secure and protect the public interest and to insure uniformity of regulation.”189 Since 1992, the FCC has used this power to regulate false speech by forbidding the dissemination of hoaxes.190 Congress has also used this power to pass legislation that regulates the internet in significant ways. For example, the Communications Decency Act of 1996 explicitly shields computer-service providers from liability when third parties use those services to publish defamatory statements.191 And while the Court ruled that another portion of that same statute prohibiting obscene communications to minors violated the First Amendment, the Justices never questioned any part of the law on Commerce Clause grounds.192
Given Congress’s history of permissibly regulating interstate speech, it could easily constitutionally justify a federal defamation law with the purpose of fostering open communication and effective coverage of public issues on borderless platforms like the internet.193 Given the sheer volume of speech that occurs online, and given that even small community newspapers maintain websites, a federal law applying only to interstate speech would almost certainly cover most publications and likely serve as the main source of defamation claims.
Because Congress can legislate in this space under the
Commerce Clause, a federal defamation law could permissibly preempt state
versions under the
Supremacy Clause.194 Indeed, the whole point of the Supremacy Clause is to ensure that Congress can “displace or preempt state laws regulating private activity affecting interstate commerce when these laws conflict with federal law.”195 And to the extent that Congress may displace other forms of state tort law, there is no reason that defamation law should be different.196 The Supreme Court has recognized “sound public policy supporting preemption of tort claims” and supported the idea that express preemption may attain uniformity “unencumbered by the potentially varying and inconsistent interpretations of juries across fifty states.”197 Accordingly, satisfying a national goal of uniformity in libel litigation would justify a defamation law replacing a state cause of action with a federal one.198
Further, a federal defamation law would regulate private actors, rather than the states themselves. It would therefore avoid anticommandeering issues199—even if it includes procedural protections alongside a substantive right of action—because it is well-established that when state courts are confronted with a federal claim, they “must enforce federal procedural rules that are part and parcel of [that] adjudicated federal claim.”200
Additionally, the strong First Amendment interests at stake in protecting reporting and discussion of public issues justify the exercise of congressional authority over interstate communications—whether they are published on the internet, broadcast over airwaves, or mailed as magazines through the United State Postal Service. Federal courts have long been used to protect other constitutional rights, and yet they have not been automatically available to vindicate First Amendment rights because free speech is pressed as a defense in the defamation context.201
Congress has the power to expand upon the enumerated rights so long as doing so does not violate other constitutional provisions.202 A federal law replacing the existing state-law regime would be in that spirit.
C. The Substance: A Federal Preemption Scheme
Under this Essay’s model, a federal defamation law would provide the exclusive cause of action to the aggrieved party. The plaintiff could file a federal claim under this uniform law in either a state or federal forum, and defendants could choose to remove the case to a federal forum under 28 U.S.C. § 1331.
To enact such a law in its simplest form, all that Congress would have to do is adopt a form of the defamation sections of the Restatement of Torts,203 which have served as the foundation for states’ common-law doctrine, while including a clear provision preempting state libel litigation.204 For example, Congress could use straightforward language that creates “an exclusive cause of action” and expressly “preempts and supersedes any Federal, State, or Tribal law, including statutes, regulations, rules, orders, proclamations, or standards that are enacted, promulgated, or established under common law, related to recovery” for false and defamatory statements made through interstate channels.205 This provision would allow litigants to vindicate core First Amendment rights in federal court, recognizing the national interest in protecting a free press and, more broadly, robust national debate of public issues.
If Congress would prefer to leave some space for states to legislate or believes that a small-town dispute between a mayor and local newspaper should not be federalized, it could impose some jurisdictional parameters. For instance, Congress could add an amount-in-controversy requirement, which would limit jurisdiction to claims exceeding a certain amount. Alternatively, Congress could require partial, rather than complete, diversity of parties, which would allow purely local disputes to remain the province of state courts while limiting plaintiffs’ ability to destroy diversity with media defendants through the addition of ancillary parties.
Congress could also choose to leave state anti-SLAPP laws in place by including a section announcing that more speech-protective state laws are not preempted. This section could state that nothing in the statute “preempts or supersedes any provision of State law that . . . otherwise affords a greater degree of protection from [defamation] liability,” as has been used in other federal legislation.206 Federal legislation of this kind would serve as a one-way ratchet, allowing states to continue to experiment with broader anti-SLAPP reforms while still blocking punitive speech laws, like the food libel law that would have allowed for treble damages in the Pink Slime case.207
Congress could also use the law as a vehicle for more ambitious substantive reform. For example, it could contain a definitions section establishing that federal defamation actions should be judged according to a “national community standard,” given their interstate nature. The Supreme Court’s logic in Reno v. ACLU already supports such a requirement: while striking down a federal antidecency statute on First Amendment grounds, the Court expressed its concern that the traditional “‘community standards’ criterion as applied to the internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.”208 Additionally, Congress could codify certain common-law privileges that have been recognized in many states, such as the “fair report” privilege protecting statements that fairly are derived from official documents or proceedings.209
Congress could also adopt some or all of the provisions of a previously introduced bipartisan federal anti-SLAPP bill, the SPEAK FREE Act, which lost momentum when President Trump took office.210 The most significant of these provisions establishes a special motion to dismiss, which stays discovery and puts the burden on the plaintiff to “demonstrate that the claim is likely to succeed on the merits” when the defendant has engaged in speech on “a matter of public concern.”211 As much scholarship and many prospeech organizations agree, such special motions “guarantee a speedy resolution of the anti-SLAPP dispute.”212 A comprehensive defamation-reform bill could also adopt the SPEAK FREE Act’s fee-shifting provision, penalizing SLAPP plaintiffs and aligning the statute with other laws that seek to discourage the infringement of civil rights.213
Finally, Congress could consider providing a declaratory judgment remedy that confines the defamation inquiry to falsity.214 In exchange for foregoing damages, plaintiffs who elect this remedy would be excused from showing a culpable mental state.215 In effect, this would allow a plaintiff to restore her reputation by receiving formal judicial acknowledgment that a statement concerning her was false and injurious, without requiring expensive and intrusive discovery and without exposing defendants to potentially ruinous claims.216 Providing this remedy would restore much-needed balance to the defamation lawsuits, while serving the interests of plaintiffs and defendants alike.
D. Objections and Obstacles
As with any legislative proposal, there are some valid objections to congressional reform of defamation law. The most significant is that introducing a federal defamation law could open a Pandora’s box. Certain lawmakers—including some who have brought defamation actions themselves217—may be inclined to include language that is more hostile to than protective of speech. However, the risk of hijack is inherent to any legislative proposal, and it will be incumbent on free-speech and free-press advocates, both inside and outside of Congress, to take proper stock of the political climate before attempting any major defamation reform.
Another objection is that many of the goals of the federal defamation-preemption scheme described could be accomplished by enacting a federal anti-SLAPP law, particularly one with a removal provision like the SPEAK FREE Act.218 It is true that adopting a federal anti-SLAPP law would reduce litigation burdens on defendants by allowing earlier termination of vexatious lawsuits and guaranteeing those protections to defendants in all fifty states, in state and federal courts. But while a federal anti-SLAPP law would address many of the practical difficulties described, it would not resolve the doctrinal anachronism that allows states to decide what qualifies as harmful and actionable interstate speech.
Relatedly, some might object that a federal defamation preemption scheme would intrude on a traditional state domain. This is true. However, given the obvious federal interest in protecting and regulating interstate speech, this essentially amounts to an argument for maintaining the status quo for the sake of maintaining the status quo.219 Additionally, as discussed earlier inSection III.C, the preemption scheme would be most constitutionally defensible if it left regulation of intrastate speech to the states themselves, ensuring that purely local actions would be left to state courts.220
Finally, some might be concerned that this proposal elevates
the First Amendment interest in speech at the expense of the common-law
interest in reputation. However, aspects of this proposal—such as the
establishment of a declaratory-judgment remedy—could temper those concerns.
Further, those concerns, which have been raised against anti-SLAPP reforms
generally, articulate a fundamental disagreement over whether the harm of
permitting some false speech is greater than the harm of inhibiting public
debate.221 To the extent that there
has been legal consensus on this question since Sullivan, that consensus concludes that the harm of chilling speech
In 1964, the Supreme Court made a revolutionary move: it constitutionalized an entire area of law that it had previously left to the states. Sullivan transformed a tort meant to serve local interests by enshrining a defense meant to serve national interests. At a time when most communication was local, the Sullivan Court’s actual-malice standard fulfilled its intended purpose of providing defamation defendants with meaningful First Amendment protections. However, this framework has failed in a modern media environment where speech is more likely to occur across communities than within them.
Defamation law, as it currently exists, is unworkable and fails to meet its goals. On one hand, the significant costs of litigation and substantive hurdles that plaintiffs must clear mean that individuals lacking substantial resources are unlikely to bring defamation claims and obtain relief when they are subject to harmful falsehoods. On the other hand, the existing system enables superrich plaintiffs to bring massive claims that strong-arm defendants into colossal settlements, regardless of the legal merit. Defendants are particularly vulnerable from a jurisdictional perspective: the existing state-law defamation regime allows plaintiffs to shop for friendly and faraway forums, which makes litigation expensive and inconvenient, while increasing the likelihood of a plaintiff-friendly disposition. This current framework yields results that are both random and catastrophic, producing a chilling effect that protects those with power and money.
In his Sullivan concurrence, Justice Goldberg observed that the Court was creating “a clean slate” for defamation law.223It is past time to clean the slate once again. Half a century ago, the Court took the then-necessary step of constitutionalizing defamation law. Now, it is up to Congress to federalize it. Such a move is necessary in a world where speech knows no bounds.
Alexandra M. Gutierrez wrote this Essay as a Yale Law Journal Public Interest Fellow with the Center for Investigative Reporting (CIR). The Author thanks Raleigh Cavero and the editors of the Yale Law Journal Forum for their thoughtful feedback throughout the editing process. The Author also extends her gratitude to Alexandra Perloff-Giles for her helpful comments, to Jack Balkin for his sharp insights, and most of all to Ned Levin for his immeasurable support.