Just a half-century ago, “the news media were one of America’s most trusted institutions.”Footnote 1 Today, however, almost half of Americans say they have little or no trust in newspapers, and more than half say the same about television news.Footnote 2 Although some degree of public distrust of the media is healthy, distrust of this magnitude represents a crisis of legitimacy.
The role of the press in safeguarding democracy is enshrined in the U.S. Constitution. The Constitution protects press freedom not as an end in itself and “not as a favor to a particular industry”Footnote 3 but as a means of making our system of government possible. The framers recognized that the republic’s fate depends on citizens having access to reliable and timely information about their world. Trustworthy news enables us to participate in informed public discussion, forge consensus, and hold democratically elected leaders accountable.Footnote 4 If we lack access to (or cannot agree upon) the most basic facts about global, national, and local events or the myriad issues that affect our lives, it is impossible to understand and respond to the challenges facing us and our country. Without shared facts about the world, the stability of our communal life is in jeopardy.Footnote 5
It may seem quixotic to lament the public’s loss of faith in traditional media actors at a time when we have – on demand – an unprecedented level of access to information.Footnote 6 Social media enables more people than ever before to share content and commentary with mass audiences. Yet this very informational abundance – soon to be magnified by generative artificial intelligence – can make it increasingly difficult to know which information to trust. And even though some types of information are superabundant, other types are becoming scarcer. Case in point: Historically, local newsgatherers played a key, democracy-enhancing role by keeping their communities informed about local events and holding local elected officials to account. Now, however, the market for local news has evaporated, turning more and more cities into “news deserts.” Meanwhile, fewer national legacy news providers can afford to invest in the processes and expertise needed to produce high-quality news about our increasingly complex world.Footnote 7 As such, the true crisis of press legitimacy is the declining cultural investment in the systematic gathering of high-quality news produced by independent, transparent, and trustworthy sources.
What caused the Fourth Estate to crumble? Although scholars usually point to a handful of cultural and economic factors as undermining news quality and press credibility, various critics now identify a more covert culprit: the U.S. Supreme Court. The Court is partly to blame for the press’s declining credibility, these critics claim, because the Court’s First Amendment decisions hinder the ability of state defamation law to hold the press accountable for defamatory falsehoods. The implication is that the press would regain much of its credibility if the Court were to remove these constitutional barriers – especially the requirement that public officials and public figures demonstrate “actual malice” on the part of the press for a defamation claim to prevail. As this chapter explains, the current landscape of high-profile defamation cases, and the public reaction to them, casts doubt on whether restoring public trust in the press could be so easy.
8.1 The Usual Suspects
Scholars and commentators have identified a number of potential contributors to the deterioration of public trust in the press. For example, many observers suggest that the growing distrust in the news media is simply a facet of the public’s declining trust in all types of public and private institutions.Footnote 8 A recent Gallup poll found historically low levels of public trust in the justice system, the medical system, the presidency, public schools, Congress, and many other institutions.Footnote 9 However, even in the context of this overall decline of institutional trust, the growing skepticism toward news media is exceptional: Journalists are less trusted than most other professionals, and only 11 percent of those polled expressed a great deal or quite a lot of confidence in television news; newspapers fared slightly better, but only 16 percent of those polled expressed confidence in them.Footnote 10
A primary contributor to public distrust in traditional news media providers is the collapse of the economic model supporting news production. Over the past quarter of a century, the Internet has gobbled up advertising revenues that were once used to finance news production, while simultaneously subjecting traditional news providers to increased competition from low-quality “cheap news.” The rise of generative artificial intelligence threatens to accelerate these competitive forces,Footnote 11 which fuel public distrust in the press by making fact-based news both less profitable to produce and harder to distinguish from misinformation. These forces also change both the style and substance of news content in ways that can undermine press credibility.
Instead of relying on traditional media to set their news agenda, many Americans now rely on social media connections, algorithms, and influencers to curate their (mostly free) news content.Footnote 12 Although some of this free content is produced by news entities that once would have reaped advertising revenue from providing it, the vast bulk of that revenue is now rechanneled to online classified advertising sitesFootnote 13 or to platforms that offer the kind of micro-targeted advertising precision that even digital news providers simply cannot match.Footnote 14 This flight of advertising revenue has disrupted various legacy news producers,Footnote 15 but newspapers – long the bedrock of news production and resource-intensive investigative journalismFootnote 16 – have experienced the most dramatic impact.Footnote 17
It is not just advertisers who have fled to the tech platforms – so, too, have audiences.Footnote 18 Between roughly 2000 and 2022, daily newspapers lost two-thirds of their readers,Footnote 19 with total revenues falling by over 80 percent.Footnote 20 While The New York Times and The Wall Street Journal have been able to offset lost advertising revenue with subscription dollars,Footnote 21 they are the rare exceptions. Between 2004 and 2020, more than 2,100 papers closed,Footnote 22 and some of the survivors dwindled to become what the NewsGuild has labeled “ghost newspapers” – downsized shells of their former selves.Footnote 23
The declining financial fortunes of newspapers have affected overall news quality across the media landscape. How could they not? The brain drain in journalism over the last two decades has been cataclysmic. Between 2008 and 2020, newspapers cut newsroom employees by 57 percent.Footnote 24 In 2023, newsrooms experienced the “worst job cuts” in years, and 2024 began with reports of storied newspapers – including, for example, the Los Angeles Times and the Washington Post – delivering more bad news about newsroom staffing.Footnote 25 However, it is not only the evisceration of expertise that hurts news quality. It is also that resources have been disproportionately withdrawn from the production of local news and investigative journalism; these are the very kinds of journalism that help citizens participate meaningfully in shaping their communities and holding officials to account. Without journalistic watchdogs, corruption flourishes and communities suffer.
In the meantime, the need to compete for attention in a crowded marketplace has shaped news content in ways that magnify public distrust. To survive, legacy media have been forced to compete to break news faster than their online competitors, to hijack readers’ attention with sensational content, and, in many cases, to cultivate niche audiences by appealing to partisan loyalties.Footnote 26 This competition forces the legacy press to try to give audiences what they want, which paradoxically causes those same audiences to disrespect the press for pandering.
Of course, it does not help that the term “news” is frequently applied not only to fact-based reporting on newsworthy events but also to commentary, infotainment, and clickbait. Nor does it help that the purveyors of all of these forms of content often adopt the label of “journalists.” Even legacy media themselves have contributed to blurring the lines between these categories, making it unsurprising that the public mistrusts their motives. They have also contributed to the problem by, at times, constructing their own “filter bubbles,” hobbling their ability to connect with those they cover. In the meantime, demagogues stoke the public’s disdain for the press for their own political gain, portraying the press as biased and untrustworthy and encouraging partisans to brand any news with which they disagree as “fake.”Footnote 27
8.2 Is Libel Law to Blame?
These factors have contributed to media distrust, but certain prominent voices point to an unexpected contributor to the eroding public trust in US media: American libel law exceptionalism.
8.2.1 Does US Libel Law Incentivize Press Irresponsibility?
Libel law in the United States provides broader protections for media errors than its common law counterparts. This is by design. Until 1964, in both the United States and the United Kingdom, a plaintiff could succeed in a libel action by proving the publication of a defamatory communication concerning the plaintiff. Fault was presumed, falsity was presumed, and damages were presumed, though defendants could escape liability by proving privilege or truth.
US law began to diverge markedly from UK law starting with the U.S. Supreme Court’s 1964 decision in New York Times Co. v. Sullivan.Footnote 28 In Sullivan, the Court, for the first time, held that the First Amendment imposes limits on the common law of defamation.Footnote 29 Most famously, the Court held that states could not allow public officials to recover compensation for defamation unless they proved actual malice using clear and convincing evidence.Footnote 30 In other words, defendants would face liability for defamatory statements about public officials only if they knew the statements to be false or recklessly disregarded the truth or falsity.Footnote 31 A defendant’s negligence in ascertaining truth was insufficient. The Court reasoned that negligent errors are “inevitable” in public debateFootnote 32 and thus held that imposing liability for them would dampen the vigor of the press in its coverage of public officials.Footnote 33
Sullivan was only the beginning. The Court soon extended the actual-malice rules to criminal defamation cases and to cases brought by “public figures” – people we might today call influencers. Lower courts embraced a broad view of this category, burdening a wide swath of plaintiffs with proving that media defamation defendants “in fact entertained serious doubts as to the truth”Footnote 34 of what they published about them before they could recover compensation for damage to their reputations. The Court subsequently established a different set of rules for private figures involved in newsworthy events or “matters of public concern.” These plaintiffs cannot recover compensation without proving falsity and some degree of fault: If they choose to prove negligence, they must also prove actual injury; if they choose to prove actual malice, presumed damages are available.Footnote 35 In addition, all categories of plaintiffs described above can only sue for defamation based on assertions of objective fact.Footnote 36 This last move rendered the Supreme Court’s First Amendment overhaul of the common law almost total, with practically no element left untouched. However, probably the most consequential change was overturning the common law’s presumptions of fault and falsity and imposing an actual-malice requirement in the vast bulk of cases involving the media.
Together, these changes meant that US plaintiffs – especially public officials and public figures – face a higher barrier to holding the media accountable for defamatory falsehoods than plaintiffs in other common law countries do. Unlike the United States, these countries do not require proof of actual malice. Under UK law, for instance, courts will presume fault if plaintiffs can demonstrate “serious harm.” Falsity is also presumed, although UK law continues to make truth a defense.Footnote 37 Defendants may also avoid liability if they can show that they acted reasonably in publishing a matter in the public interest.Footnote 38 This defense is the codified version of what was once called a privilege for “responsible journalism.”Footnote 39 When invoked, it has the effect of applying a fault requirement to the media defendant that is akin to a negligence standard. Australia, Canada, and South Africa follow similar approaches.
8.2.2 Defamation Law and Public Trust in the Press
So how might American libel law exceptionalism affect public trust? According to critics, libel laws can incentivize the press to get things right by holding them responsible for getting things wrong. By absolving the press of responsibility for getting things wrong about public officials or public figures unless they “in fact entertained serious doubts”Footnote 40 as to the information’s truth or falsity, the United States’ actual-malice rule has removed this incentive for accuracy. For these observers, the extent to which ordinary people in the United States understand how difficult it is for those in the public eye to hold the press (or any other speaker) responsible for falsehoods about public matters is inversely related to the likelihood of those ordinary people believing what they read or hear and trusting those who write or speak.
Defamation scholar David Anderson made essentially this argument thirty years ago,Footnote 41 although in a more extended and sophisticated form. Anderson argued that the actual-malice rule degrades news quality: “[B]y eliminating most of the risks associated with the journalism of scandal, at least when it is directed at public officials or public figures,”Footnote 42 the actual-malice rule makes it easier for the press to give in to the ever-present “market pressures to serve the public appetite for scandal.”Footnote 43 Roughly contemporaneously, Anderson’s argument was echoed by then-scholar (now-Supreme Court Justice) Elena Kagan, who asked, “Is it possible that Sullivan bears some responsibility for a change in the way the press views itself and its conduct – a change that the general public might describe as increased press arrogance?”Footnote 44 Like Anderson, Kagan decried the actual-malice rule’s contribution to “the ‘tabloidization’ of the mainstream press”Footnote 45 and questioned whether a different standard might, “in the long term[,] benefit journalism” and improve the quality of public discourse.Footnote 46
The social media revolution has lent these arguments renewed resonance. Supreme Court Justices Clarence Thomas and Neil Gorsuch have criticized Sullivan’s legacy in nonprecedential opinions dissenting from the Court’s denial of certiorari. For Thomas, beyond being the product of “policy-driven decision masquerading as constitutional law,” constitutionalizing libel law was bad policy. According to his account, the actual-malice rule enables “media organizations and interest groups ‘to cast false aspersion on public figures with near impunity.’” Gorsuch amplified the “bad policy” aspect of Thomas’s position by focusing on how the actual-malice rule, together with changes in the communications environment since 1964, undermines high-quality, fact-based, democracy-enhancing journalism.Footnote 47
In his dissent in Berisha v. Lawson, Gorsuch postulated that the framers understood the importance of press freedom for the healthy functioning of democracy.Footnote 48 However, he also suggested that press freedom comes with a duty “to try to get the facts right,” implying that the press no longer make this effort, even if they once did.Footnote 49
Gorsuch lays a portion of the blame on the social media revolution, acknowledging that economic and technological changes have not been kind to “our [n]ation’s media.”Footnote 50 Citing scholars David Logan and Richard Epstein, Gorsuch first explains how changes to the economic model supporting traditional media undermined their incentives and ability to invest in the reporters, editors, and fact-checkers necessary to get the facts right.Footnote 51 Before the social media revolution, “many major media outlets” invested the time and resources necessary “to report true stories” because they could reap the economic benefits of the public’s “confidence that what they read [wa]s true.”Footnote 52 However, in this “new media environment,” false information “costs almost nothing to generate,” spreads more effectively than real news, and is more lucrative to generate than real news.Footnote 53
Despite acknowledging these contributors to declining press credibility, Gorsuch also blames the Supreme Court’s interpretation of the First Amendment for undermining journalistic incentives for accuracy. He specifically targets the actual-malice rule and its expansion beyond public officials to the growing category of those in the public eye.Footnote 54 For Gorsuch, even if the actual-malice rule might have made sense in an environment in which media actors had professional and economic incentives not to publish “defamatory falsehoods and misinformation,” the rule’s rationale has evaporated along with those “other safeguards”Footnote 55 for accuracy. Today, he claims, the combination of the actual-malice rule “with the business incentives fostered by our new media world” works “against those with traditional (and expensive) journalistic standards – and in favor of those who can disseminate the most sensational information as efficiently as possible without any particular concern for truth.”Footnote 56 Gorsuch even argues that the actual-malice rule incentivizes the media to publish reputation-damaging falsehoods “without investigation, fact-checking, or editing.” This argument ignores the mechanics of the actual-malice rule: Defendants’ efforts to confirm the truth tend to negate the fact that they entertained serious doubts as to falsity and to absolve them of liability.Footnote 57 Regardless, the argument that the actual-malice rule acts as “an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable”Footnote 58 rather pointedly raises the question of whether reforming that rule might produce more of the kinds of news that democracy can use.
It is intuitively persuasive that replacing the actual-malice rule with a negligence standard might enhance news quality. But Gorsuch’s argument contains many assumptions that do not hold up under scrutiny, particularly considering the spate of recent defamation victories that plaintiffs have won against the press and other high-profile defendants – with no noticeable improvement to our information ecosystem.
Gorsuch’s argument ignores the fact that the scope of defamation law is limited and contributors to misinformation are many. Defamation law exists to protect reputations by vindicating victims of reputational injury and compensating them for dignitary, relational, and economic harms. While defamation law plays a role in setting the boundaries of civilized discourse – and thus, indirectly anchoring that discourse in truth – it can only do so in cases involving an individual plaintiff whose reputation has been harmed. However, most falsehoods that pollute public discourse are not aimed at individuals but instead involve complex public policy issues. Many of these falsehoods emanate not from legacy media but from sources unlikely to be deterred by defamation lawsuits, such as state actors, politicians peddling lies for political ends, delusional conspiracy theorists, and fervent partisans who believe what they want to believe. Journalists who fail to investigate, edit, or verify the information they publish – sometimes because of bias – undoubtedly contribute to the problem, but the only cases that defamation law can address are those involving reputational harm.
Gorsuch also overstates the difficulties plaintiffs face in proving actual malice. Actual malice is difficult to prove, but it is not “effective immunity from liability,”Footnote 59 as evidenced by the success of plaintiffs in achieving large jury verdicts in recent cases involving proof of actual malice.Footnote 60 In the two defamation cases brought by writer E. Jean Carroll against President Donald Trump,Footnote 61 one jury awarded Carroll $10 million, and another jury awarded her $83.3 million. Elsewhere, an appeals court affirmed an award of over $10 million to actor Johnny Depp in a case against his ex-wife, Amber Heard,Footnote 62 and a jury awarded a climate scientist, Michael Mann, over $1 million in damages.Footnote 63
Aside from jury verdicts demonstrating that actual malice is not an insurmountable barrier to plaintiff recovery, Gorsuch ignored that many defamation cases – including those involving media misconduct – lead to settlements. A case in point is the jaw-dropping $787.5 million settlement in Dominion Voting Systems v. Fox News.Footnote 64 While many lessons can be drawn from the case – as discussed below – the size of the settlement surely indicates that Fox did not believe that the actual-malice rule provided “effective immunity”Footnote 65 from defamation liability.
Another flaw in this argument is that it focuses solely on the actual-malice rule in isolation, overlooking the incentive structure of US defamation law as a whole. Under current defamation law, media organizations face the ever-present threats of enormous litigation costs and stratospherically large damages awards, which surely affect their incentives at least as much as the actual-malice rule. For smaller news organizations, the cost of defending a defamation action can be ruinous, even if the organization is likely to win. Furthermore, even a small prospect of being held liable for enormous damages is an incentive to get the facts right – at least for most rational actors with something to lose. Defamation law might not offer the solution to improving news quality if these incentives are failing, as they appear to be.
Moreover, a set of recent high-profile defamation cases indicate that some defendants are almost impervious to the supposed accountability incentives of defamation law. These cases suggest that if defamation law should re-anchor public discourse in truth, it simply is not happening. One such case involves the legacy media defendant Fox News. In 2021, Dominion Voting Systems sued Fox News for defamation in the course of the network’s coverage of the 2020 election.Footnote 66 In the wake of the election, then-President Trump and some of his partisans began to insist that election fraud deprived Trump of victory.Footnote 67 Among those they blamed for fraud was Dominion Voting Systems, the producer of the electronic voting machines used in some states.Footnote 68 Although Fox News had initially declared that former Vice President Joe Biden won the election, it hosted and sometimes seemed to endorse various Trump partisans presenting spurious “evidence” that Dominion rigged its voting machines to deliver the election to Biden.Footnote 69 Dominion sued Fox for $1.6 billion.Footnote 70
Discovery in the case unveiled considerable evidence that many of Fox’s executives and hosts doubted the veracity of the “evidence” against Dominion. Emails and texts between them suggested that they knew the falsehoods about Dominion were untrue, with some even referring to the allegations and those peddling them as “nuts” and “crazy.”Footnote 71 Nonetheless, Fox continued to air lies about Dominion, making the calculated gamble that its audience would desert it if it stopped publicizing “the Big Lie,” a gamble that appeared to pay off.Footnote 72 Despite entering into the largest libel settlement in history, Fox News overcame what should have been a serious reputational setback for a news purveyor to remain the most-watched cable news network in the United States.Footnote 73 In fact, a year on from the settlement, it attracts more viewers to its prime-time news than its two top cable competitors combined.Footnote 74 Although it is impossible to know whether the settlement has increased Fox’s commitment to providing its viewers with fact-based news, one observer noted that they “don’t see any reason why the lawsuit changes the way that Fox does business because the way it does business makes it money.”Footnote 75
Scholar RonNell Andersen Jones made this point in an opinion piece in The New York Times, and she has documented further failures of libel law to produce accountability.Footnote 76 President Trump has promised to continue to repeat his defamatory accusations about Carroll “a thousand times,” even after juries found him liable for almost $90 million for accusing her of lying about him sexually assaulting her.Footnote 77 Likewise, Trump’s former attorney, Rudy Giuliani, has continued to accuse two Georgia poll workers of election fraud despite a jury’s deliberation leading to their being awarded $148 million.Footnote 78 Elsewhere, internet radio personality Alex Jones has continued to tell lies about the families of children killed at Sandy Hook despite a jury verdict of almost $1 billion against him. In these cases, court judgments ostensibly provided the plaintiffs with authoritative declarations of truth, and yet large segments of the court of public opinion remained unconvinced. Consider, for example, that mere months after Carroll won her second verdict,Footnote 79 Trump secured the Republican nomination for president.Footnote 80 Carroll’s defamation victory provided only partial vindication and no deterrence, for reasons having nothing to do with defamation law exceptionalism and everything to do with political polarization and demagogic populism.
Although defendants like Trump, Jones, and Giuliani seem undaunted by enormous libel verdicts, libel lawsuits continue to force other defendants to err substantially on the side of caution. Only the largest, most well-resourced members of the legacy media can easily combat even a meritless libel action, and the rich and powerful can inflict significant penalties on their critics just by suing them.Footnote 81 High litigation costs and the inability to predict whether an action will result in a multimillion-dollar verdict also mean that few media defendants can afford to blithely publish falsehoods about individuals on the assumption that the actual-malice rule will protect them.
If one needed confirmation of this thesis, the evidence from the UK is instructive. Despite its more reputation-protective and press-punishing defamation laws, the British public does not appear to trust the British press significantly more than the American public trusts the American press.Footnote 82 Moreover, distrust in institutions, including the press, is a worldwide phenomenon. Distrust in the press is merely a symptom of what United Nations Secretary-General António Guterres has called a worldwide “Trust Deficit Disorder.”Footnote 83 This disorder is fueled by a complex set of factors, including “inequality … undermining faith in the social contract,”Footnote 84 which do not lend themselves to simple solutions. The depressing upshot of this analysis seems to be that defamation law is too small a piece of the distrust puzzle to make defamation reform the answer.
However, even if defamation reform is not the answer, defamation does need reform. As I have written elsewhere, defamation must introduce remedies that vindicate individual reputations and surface the truth more readily. Lower courts have already expanded the use of injunctions in libel cases, and further broadening the repertoire of remedies to include declaratory judgments might re-anchor the law’s role in vindicating plaintiffs’ truths. But such reforms should not be conducted in isolation. While expanding plaintiffs’ opportunities for vindication, defamation law reforms should also consider restricting remedies (such as presumed and punitive damages) that allow the rich and powerful to sue their critics into silence. Procedural mechanisms designed to reduce the cost of litigation should also be at the forefront of reform efforts. In one sense, Gorsuch and other critics of Sullivan’s regime are right: Defamation should be recalibrated to reward journalists who adhere to professionally developed standards for getting the facts right. But eliminating actual malice? If only it were that simple.
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