AuthorLueders, Bill
PositionFIRST THINGS FIRST - Defamation law and Dominion Voting Systems Corp.'s case against FOX News Network L.L.C.

Several times a year, in my role as president of the Wisconsin Freedom of Information Council, I get to meet with small delegations of journalists from around the world brought in by the U.S. State Departments guest visitor programs. Often joining me is Norman Stockwell, the publisher of The Progressive. We talk about government transparency (or the lack thereof) and the pressures and constraints faced by reporters and news outlets in our respective countries.

A recurring theme: The visitors, mostly from Asia, Latin America, and Europe, are often astonished by the extent to which the U.S. media and public are free to criticize people in power. Some countries tolerate satire; some don't. "You cannot do that," said a journalist from Central America at a recent session. "You cannot make fun of a politician."

Back in colonial America, criticism of government officials was considered "seditious libel" under English common law, even if it was true. But in a 1735 libel case, New York publisher John Peter Zenger successfully argued that citizens have a "natural right" to make true statements about those in power. This principle was codified in laws across the land.

In a 1964 case known as New York Times Co. v. Sullivan, the U.S. Supreme Court dramatically expanded the protection afforded journalists and others in regard to comments about public officials. It established that plaintiffs in libel cases must prove not only that their critics got something important wrong but also that they either knew it was false or otherwise acted with "reckless disregard," whether or not the claim was true. Subsequent court rulings extended this standard to include not just public officials but also public figures.

This high bar is a constant source of irritation to people in the public eye for whom lying comes as naturally as breathing. Former President and current presidential contender Donald Trump has long called for legislation or court action "to open up our libel laws so when they write purposely negative and horrible and false articles"--presumably as defined by Trump--"we can sue them and win lots of money."

Now allies of Florida's attention-craving GOP governor and presidential wannabe Ron DeSantis have introduced legislation to gut the protections afforded under Sullivan.

The proposed bill would establish a presumption that any "statement by an anonymous source" is false; eliminate the "actual malice" standard for public figures in certain situations...

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