An Unreasonable Standard?: The Dilemma of Applying Actual Malice to Irrational Speakers

Abstract

Several defamation cases stemming from apparently irrational statements are testing the boundaries and standards of defamation law. The constitutional standard for defamation of public figures, actual malice, is based on the speaker’s knowledge that a statement is false or their reckless disregard for whether it is true. An irrational speaker who believes their statement is true confounds this test. This article delineates aspects of defamation law that are challenged by an irrational speaker and concludes with a recommendation to include a stronger “objective” element in the application of the actual malice standard to such cases.

Keywords:

• Actual malice
• defamation
• irrational
• insanity
• libel
• truth

Declaration of Interest Statement

This confirms the following:

• There are no known conflicts of interest associated with this publication and there has been no significant financial support for this work that could have influenced its outcome.

• The article has been researched and written solely by the named author, and there are no other persons who satisfied the criteria for authorship but are not listed.

• The named author has given due consideration to the protection of intellectual property associated with this work and that there are no impediments to publication, including the timing of publication, with respect to intellectual property.

Notes

1 The deposition in which Jones made this statement was taken as part of a defamation lawsuit brought by Leonard Pozner and Veronique De La Rosa, parents of a child killed in the Sandy Hook school shooting. See Pozner v. Jones, No. 18-1842 (Tex. Dist. Ct., Travis Cty. filed Apr. 16, 2018), For a list of the lawsuits against Jones, see note 17, infra.

2 Amanda Sakuma, Alex Jones Blames “Psychosis” for his Sandy Hook Conspiracies, Vox, Mar. 31, 2019, https://www.vox.com/2019/3/31/18289271/alex-jones-psychosis-conspiracies-sandy-hook-hoax. Jones added that “I’ve now learned a lot of times things aren’t staged.” Id.

3 Dominion filed separate lawsuits against Powell and Lindell in the Washington, DC, federal court. See U.S. Dominion, Inc. v. Powell, Civil No. 21-040 (D. D.C. complaint filed Jan. 8, 2021), docket and filings available at https://www.courtlistener.com/docket/29090821/us-dominion-inc-v-powell, and US Dominion, Inc. v. My Pillow, Inc., Civil No 21-0445 (D. D.C. complaint filed Feb. 22, 2021), docket and filings available at https://www.courtlistener.com/docket/59670901/us-dominion-inc-v-my-pillow-inc. These are two of several lawsuits filed over allegations of fraud in the 2020 presidential election. See Alison Durkee, After Court Lets Fox News Challenge Move Forward, Here’s Where Dominion and Smartmatic’s Defamation Suits Stand Now—And Who Could Be Next, Forbes, Mar. 9, 2022, https://www.forbes.com/sites/alisondurkee/2022/03/09/after-court-lets-fox-news-challenge-move-forward-heres-where-dominion-and-smartmatic-defamation-suits-stand-now-and-who-could-be-next. Documents from these various cases are available at https://www.justsecurity.org/77022/january-6-clearinghouse.

4 Alison Durkee, Sidney Powell, Mike Lindell Claim Dominion Defamation Lawsuits Should Be Tossed Because They Believed Conspiracy Claims to Be True, Forbes, Jun. 24, 2021, https://www.forbes.com/sites/alisondurkee/2021/06/24/sidney-powell-mike-lindell-claim-dominion-defamation-lawsuits-should-be-tossed-because-they-believed-conspiracy-claims-to-be-true. It is noteworthy that in motions to dismiss Dominion’s lawsuit against Powell, her attorneys argued that “no reasonable person would conclude that [Powell’s] statements were truly statements of fact,” and that her statements were either opinions that cannot be proven true or false or “legal theories … made in the context of pending and impending litigation.” Memorandum of Law in Support of Def. Sidney Powell’s Motion to Dismiss, U.S. Dominion, Inc. v. Powell, Civil No. 21-040 (D. D.C filed Mar. 22, 2021) at 43–44, available at https://assets.documentcloud.org/documents/20519858/3-22-21-sidney-powell-defending-the-republic-motion-to-dismiss-dominion.pdf.

5 Jacob Sullum, Sidney Powell, Who Denied That Her Wacky Election Conspiracy Claims Were Statements of Fact, Now Says She Will Prove They Were True, Reason, June 8, 2021, https://reason.com/2021/06/08/sidney-powell-who-denied-that-her-wacky-election-conspiracy-claims-were-statements-of-fact-now-says-she-will-prove-they-were-true.

6 Craig Mauger, Powell Blasts Sanction Hearing, Defends Suit to overturn Michigan Vote, The Detroit News, July 12, 2021, https://www.detroitnews.com/story/news/politics/2021/07/12/michigan-judge-weighs-whether-sanction-pro-trump-attorneys/7934063002. The court later imposed the sanctions against Powell. See Tatyana Monnay, Federal Judge Imposes Sanctions on Sidney Powell, Lin Wood and Other Pro-Trump Lawyers, Politico, Aug. 25, 2021, https://www.politico.com/news/2021/08/25/powell-wood-trump-sanctions-506910. In a motion for reconsideration of a federal judge’s referral of Powell to the Michigan bar for disbarment, Powell’s attorneys argued that “Millions of Americans believe the central contentions of [Powell’s] complaint [challenging the election results] to be true, and perhaps they are.” Adam Klasfeld, Sidney Powell, ‘Kraken’ Lawyers Ask Appeals Court to Reverse ‘Intemperate’ Sanctions Order: We’re Not ‘Overwrought, Dangerous Lunatics’, Law & Crime, Feb 7, 2022, https://lawandcrime.com/2020-election/sidney-powell-kraken-lawyers-ask-appeals-court-to-reverse-intemperate-sanctions-order-were-not-overwrought-dangerous-lunatics.

7 James Barron, Nation Reels After Gunman Massacres 20 Children at School in Connecticut, N,Y. Times, Dec. 14, 2012, https://www.nytimes.com/2012/12/15/nyregion/shooting-reported-at-connecticut-elementary-school.html. Accounts of eyewitnesses to the shooting include Gary Stoller, School Shooting Survivor Tells Her Story, USA Today, Dec. 18, 2022, https://www.usatoday.com/story/news/nation/2012/12/18/connecticut-school-shooting-survivor/1778431; and Reuters, Becky Virgalla, Newtown Shooting Survivor, Says Principal, Others Saved Her In Sandy Hook Rampage, Huffington Post, Dec. 23, 2012. It should be noted that no number of citations to authoritative sources is likely to convince deniers that the incident actually occurred.

8 See, e.g., Michael Balsamo, Disputing Trump, Barr Says No Widespread Election Fraud, Associated Press, June 28, 2022, https://apnews.com/article/barr-no-widespread-election-fraud-b1f1488796c9a98c4b1a9061a6c7f49d; and

Nick Corasaniti, Reid J. Epstein, and Jim Rutenberg, The Times Called Officials in Every State: No Evidence of Voter Fraud, N.Y. Times, Nov. 10, 2020, https://www.nytimes.com/2020/11/10/us/politics/voting-fraud.html.

9 Observers have put forward various theories to explain their actions. See, e.g., Jessica Levinson, Alex Jones' Lack of Humanity Is Monstrous. His Trial Is Finally Proving It, MSNBC, Aug. 4, 2022, updated Oct. 12, 2022, https://www.msnbc.com/opinion/msnbc-opinion/alex-jones-trial-has-finally-shown-world-what-he-truly-n1297695; Peter Wade, This MyPillow Guy Meltdown Would Be Funny If It Weren’t So Dangerous, Rolling Stone, Aug. 14, 2021, https://www.rollingstone.com/politics/politics-news/mypillow-guy-meltdown-lindell-1212379; and Kate Brumback, Sidney Powell Unrelenting in Legal Battle on Trump’s Behalf, Assoc. Press, Dec. 10, 2020, https://apnews.com/article/election-2020-joe-biden-donald-trump-georgia-lawsuits-0ed38af7f94b596308475aa8b28c871c.

10 Jones has already lost default verdicts against him, see note 15, infra, while Powell has been sanctioned and is facing attorney disciplinary proceedings and possible disbarment. See note 6, supra.

11 See note 16, infra.

12 See Spencer McKay and Chris Tenove, Disinformation as a Threat to Deliberative Democracy, 74 Political Res. Q. 704, 712–13 (2021), https://doi.org/10.1177/1065912920938143.

13 This article uses the terms “mentally disabled” and “irrational,” although many courts and commentators in the past used other, more pejorative words, such as “insane.” Quotations from such sources are unaltered.

14 This article uses the terms “libel” and “defamation” interchangeably.

15 This may be giving Jones, Powell, and Lindell too much credibility. For example, in the course of the litigation Jones and his attorneys have given various explanations for his statements about the Sandy Hook shooting, including that his statements that the incident was a hoax were based on the unbelievability that such a horrific event could actually occur. See Dan Solomon, Alex Jones’s Legal Meltdown, Tex. Monthly, June 8, 2022, https://www.texasmonthly.com/news-politics/alex-jones-legal-circus.

16 In a deposition in Dominion’s separate lawsuit against Fox News over the airing of these statements, Fox News host Sean Hannity reportedly stated, “I did not believe [the claims made by Powell on Hannity’s show] for one second.” His colleague Tucker Carlson apparently said something similar. Jeremy W. Peters, In Testimony, Hannity and Other Fox Employees Said They Doubted Trump’s Fraud Claims, N.Y. Times, Dec. 21, 2022, https://www.nytimes.com/2022/12/21/business/media/sean-hannity-fox-trump-election.html.

17 The cases against Jones include Fontaine v. Infowars, LLC, No. 18-1605 (Tex. Dist. Ct., Travis Cty. filed Apr. 2, 2018); Heslin v. Jones, No. 18-1835 (Tex. Dist. Ct., Travis Cty. filed Apr. 16, 2018); Lafferty v. Jones, No. FBT-CV18-6075078-S (Conn. Dist. Ct., Fairfield Cty. filed May 23, 2018); Lewis v. Jones, No. 18-6623 (Tex. Dist. Ct., Travis Cty. filed Apr. 17, 2018), Pozner v. Jones, No. 18-1842 (Tex. Dist. Ct., Travis Cty. filed Apr. 16, 2018); and Sherlach v. Jones, No. FBT-CV18-6076475-S (Conn. Dist. Ct., Fairfield Cty. filed July 2, 2018). The cases against Lindell and Powell are listed in note 3, supra.

18 The Texas court hearing the Heslin, Lewis, and Pozner cases issued default verdicts against Jones in each case for failure to comply with discovery. In the Heslin case a subsequent damages trial resulted in a jury award of $4.1 million in compensatory damages and $45.2 million in punitive damages. Jim Vertuno, Alex Jones Ordered to Pay $45.2M More Over Sandy Hook Lies, Associated Press, Aug. 5, 2022, https://apnews.com/article/shootings-austin-texas-violence-e067a8bc031ce48be0810764c7bb3c18. In Connecticut, the court hearing Lafferty also issued a default judgment for failure to comply with discovery, which led to a damages trial that ended with a jury verdict against Jones of $965 million in compensatory damages for defamation and emotional distress and punitive damages of $150 million under the Connecticut Unfair Trade Practices Act and $323 million in attorney’s fees and costs. Susanna Granieri, Judge Orders Alex Jones to Pay Additional $473M in Punitive Damages to Sandy Hook Plaintiffs, First Amendment Watch, November 10, 2022, https://firstamendmentwatch.org/judge-orders-alex-jones-to-pay-additional-473m-in-punitive-damages-to-sandy-hook-plaintiffs. Damages trials in the other cases against Jones are currently stayed after he filed for bankruptcy. See In Re: Alexander E. Jones, Bankr. No. 22-33553 (S.D. Tex. Bankr. filed Dec. 2, 2022). Documents from the Texas lawsuits are available at https://infowarslawsuit.com.

19 376 U.S. 254 (1964).

20 418 U.S. 323 (1974).

21 See note 23, infra.

22 This article recognizes that the phrase actual malice is a term of art of defamation cases, with a specific definition and does not indicate real or severe ill will. The author uses the phrase throughout to mean its legal definition as it pertains to defamation cases rather than its definition in common parlance, but it has not been placed in quotation marks to improve readability and accessibility of the article. See Reliance Ins. Co. v. Barron’s, 442 F. Supp. 1341, 1350 (S.D.N.Y. 1977). (“‘Actual malice’ is now a term of art having nothing to do with actual malice.”). See also John Bruce Lewis & Bruce L. Ottley, New York Times v. Sullivan at 50: Despite Criticism, the Actual Malice Standard Still Provides “Breathing Space” for Communications in the Public Interest, 64 DePaul L. Rev. 1, 42–44 (2014) (describing instances where state courts confused common law actual malice with constitutional “actual malice”).

23 Dominion conceded that it was required to show actual malice in the Powell and Lindell lawsuits. Memorandum Denying Motion to Dismiss, U.S. Dominion, Inc. v. Powell, Civil No. 21-040 (D. D.C. Aug. 11, 2021), at 19 n.11, available at https://storage.courtlistener.com/recap/gov.uscourts.dcd.225699/gov.uscourts.dcd.225699.45.0_8.pdf. The plaintiffs in the Texas lawsuits against Alex Jones essentially did the same by alleging in their complaints that he had made the statements regarding the Sandy Hook shootings with actual malice. Original petition, Fontaine v. Jones, note 18, supra, at 17; Original petition, note 18, supra, at 20; and Original petition, Heslin v. Jones, note 18, supra, at 15. While the plaintiffs in the Connecticut suits asserted that they were private figures who were not required to show actual malice to prove their defamation claims, they did demand punitive damages, which requires showing actual malice. See Complaint, Lafferty v. Jones, No. FBT-CV18-6075078-S (Conn. Dist. Ct., Fairfield Cty. filed May 23, 2018) at 38; and Complaint, Sherlach v. Jones, No. FBT-CV18-6076475-S (Conn. Dist. Ct., Fairfield Cty. filed July 2, 2018) at 36. See also note 78, infra, and accompanying text.

24 In its complaint against Lindell, for example, Dominion asserts he is actually an intelligent, savvy businessman who knows that his statements regarding the 2020 election are false, and that his claims about the 2020 election are simply a marketing ploy for his products. Complaint, US Dominion, Inc. v. My Pillow, Inc., Civil No. 21-445 (D. D.C. filed Feb. 22, 2021), available at https://storage.courtlistener.com/recap/gov.uscourts.dcd.227759/gov.uscourts.dcd.227759.1.0_4.pdf.

25 In the cases against Powell and Lindell, the trial court denied their motions to dismiss, then denied their motions to allow an interlocutory appeal of this ruling. US Dominion, Inc. v. Powell, 554 F.Supp.3d 42 (D.D.C. 2021) (denying motions to dismiss in US Dominion, Inc. v. Powell, US Dominion, Inc. v. Giuliani, and US Dominion, Inc. v. My Pillow, Inc.), appeal dismissed, US Dominion, Inc. v. My Pillow, Inc., 2022 WL 774080, 2022 U.S. App. LEXIS 7649 (D.C. Cir. 2022), cert. denied, No. 21-1580, 2022 WL 4657260, 2022 U.S. LEXIS 3826 (U.S. Oct. 3, 2022). The cases against Jones did not reach the actual malice question, since the plaintiffs were awarded default judgments for the failure of Jones and his corporate entities to cooperate with discovery. See note 18, supra. See also Sebastian Murdock, Alex Jones Just Lost 2 Sandy Hook Cases, HuffPost, Sept. 30, 2021, https://www.huffpost.com/entry/alex-jones-lost-two-sandy-hook-cases_n_61561020e4b008640eb1d56a?pkq.

26 See note 23, supra.

27 Roger Parloff, Dominion v. MyPillow Guy Poses a Stark Test for America’s Libel Laws, Yahoo! News, April 13, 2021, https://news.yahoo.com/dominion-v-my-pillow-guy-mike-lindell-test-for-libel-laws-090617228.html (emphasis in original).

28 Id.

29 George J. Alexander & Thomas S. Szasz, Mental Illness as an Excuse for Civil Wrongs, 43 Notre Dame L. 24, 35 (1968), http://digitalcommons.law.scu.edu/facpubs/159 (examining the general issue of defendant’s mental state and liability for intentional torts).

30 See note 20, supra.

31 James W. Ellis, Tort Responsibility of Mentally Disabled Persons, 1981 Am. B. Found. Res. J. 1079, 1081 n. 12 (1981). See Gertz, supra note 20, 418 U.S. at 347 (states may not impose liability for defamation without requiring fault).

32 Harry J. F. Korrell, The Liability of Mentally Disabled Tort Defendants, 19 Law & Psychol. Rev. 1, 57 (1995). See note 47, infra.

33 Lyrissa Barnett Lidsky & RonNell Andersen Jones, Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World, 23 Va. J. Soc. Pol’y & L. 155 (2016). See text accompanying notes 133–137, infra.

34 “Courts should be cognizant that social media sometimes allow delusional or vengeful speakers to engage in campaigns of character assassination. Thus, courts should narrowly apply the actual malice rule to prevent the delusional speaker from escaping liability simply because she believed the defamatory accusations she invented about public figures or public officials.” Lidsky & Andersen Jones, id. at 159.

35 Id. at 178.

36 Eugene Volokh. Could John Fetterman Win a Defamation Lawsuit Against Donald Trump, for Accusing Fetterman of Hard Drug Use?, The Volokh Conspiracy, Sept. 5, 2022, https://reason.com/volokh/2022/09/05/could-john-fetterman-win-a-defamation-lawsuit-against-donald-trump-for-accusing-fetterman-of-hard-drug-use (emphasis in original).

37 Actual malice generally applies in defamation suits brought by a plaintiff who is either a public official, a public figure, or a private figure seeking punitive damages. See notes 63, 64, and 72, infra.

38 376 U.S. 254 (1964), note 19, supra.

39 Samantha Barbas, The Press and Libel Before New York Times v. Sullivan, 44 Colum. J.L. & Arts 511, 512, 516 (2021). Plaintiffs originally had to show that the defendant published the statement with malice—ill will or spite, not actual malice—but this was eventually subsumed within the publication element. Sack on Defamation § 2:2 (5th ed. 2017 supp. 2022).

40 “[A] fair general statement in brief terms of what constitutes libel is this: a newspaper publication is libelous if it identifies a person to any readers and produces an ill opinion of him in the minds of a substantial number of reasonable and right-thinking readers.” Harold Cross, Current Libel Trends, Nieman Rep., Jan. 5, 1951, 7, 8. These elements are retained in the current definition of the tort, see Restatement (Second) of Torts § 558 (a) and (b) (1979)), with the additional elements added as a result of Sullivan, supra note 19, Gertz, supra note 20, and their progeny.

41 “The presumption of falsity (the presumption) is one of the core principles of the common law of defamation.” Dario Milo, Defamation and Freedom of Speech 156 (2008). After Sullivan and Philadelphia Newspapers, Inc. v. Hepps, 475 US 767 (1986), in American law this remains only in cases involving private figure plaintiffs suing over a matter that is not of public concern. Milo at 161. Other defenses were the statute of limitations; a privilege for statements by participants in judicial, legislative, and other official proceedings; fair reports of comments at such proceedings; criticism or fair comment; a qualified privilege for statements made in good faith about a public official (the so-called “Kansas rule,” which became the basis for actual malice in Sullivan); the “right of reply”; and when the plaintiff consented to the statement. Cross, supra note 40, at 9–10.

42 At common law, defamation was divided into written statements, libel, and spoken statements, slander. Many of the distinctions between the two have now faded. See, e.g., Bryson v. News America Publications, Inc., 672 NE 2d 1207, 1215 (lll. 1996) (“At common law, libel and slander were analyzed under different sets of standards, with libel recognized as the more serious wrong. … Libel and slander are now treated alike and the same rules apply to a defamatory statement regardless of whether the statement is written or oral”). This article uses “libel” and “defamation” interchangeably.

43 Ellis, supra note 31, 1981 Am. B. Found. Res. J. at 1081 n. 12. This differed from criminal law, which would in many circumstances not hold an irrational person criminally responsible for actions for which a non-disabled person could be convicted. See William. B. Hornblower, Insanity and the Law of Negligence, 5 Columbia L. Rev. 278, 282 (1905), https://www.jstor.org/stable/1108937.

44 Restatement (Second) of Torts § 895J (1979).

45 Liability of Insane Person for Tort, 51 A.L.R. 833, 836 (1927). See also Liability of Insane Person for Tort, 89 A.L.R. 476 (1934) (collecting cases).

46 Ellis, supra note 31, 1981 Am. B. Found. Res. J. at 1081, n. 12.

47 See, e.g., Dickinson v. Barber, 9 Mass. 225, 6 Am. Dec. 58 (1812) (admitting evidence of insanity in slander suit); and Bryant v. Jackson, 6 Humph. (Tenn.) 199 (1845) (reversing slander verdict for plaintiff because trial court refused to receive evidence of defendant’s insanity). See also Korrell, supra note 32, 19 Law & Psychol. Rev. at 57.

48 “Some courts consider insanity to be a defense to liability for torts for which a specific intent is required, such as … defamation.” See, e.g., Horner v. Marshall, 5 Munf. (Va.) 466 (1817) (issuing injunction against proceeding on judgments for defamation on grounds that defendant was insane at the time of speaking the words at issue); Bryant v. Jackson, 25 Tenn. 199 (1845) (reversing award to plaintiff after court disallowed evidence that defendant was regarded as “a weak-minded man, at times wholly deranged”); Williams v. Hays, 143 N.Y. 442, 446, 38 N.E. 449, 450 (1894) (noting that “the general rule is that an insane person is just as responsible for his torts as a sane person, and the rule applies to all torts, except, perhaps, those in which malice, and therefore intention, actual or imputed, is a necessary ingredient, like libel, slander, and malicious prosecution”); Irvine v. Gibson, 117 Ky. 306, 111 Am. St. Rep. 251, 77 S.W. 1106, 4 Ann. Cas. 569 (1904) (court declared insanity as a good defense in slander case); and Phillips’ Comm. v. Ward’s Adm’r, 241 Ky. 25, 43 S.W.2d 331, 334 (1931) (“An insane person is liable civilly for his torts to the same extent as a sane person, except that punitive damages may not be allowed; and such persons are not liable for torts in which the gravamen of the action is malice, such as slander, libel, and malicious prosecution”). See also Eidinoff v. Andress, 321 S.W.2d 368 (Tex. Civ. App. El Paso 1959) (trial judge’s failure to appoint guardian for defendant during defamation trial when insanity was given as a defense is not reversible error where no request for such a guardian was made).

49 51 A.L.R. 833, supra note 45, at 836. See, e.g., Dickinson, supra note 47; Yeates v. Reed, 4 Blackf. (Ind.) 463, 32 Am. Dec. 43 (1838); and Wilson v. Walt, 138 Kan. 205, 25 P.2d 343, 89 A.L.R. 473 (1933). See also text accompanying notes 148–156, infra.

50 376 U.S. 254 (1964).

51 Id. at 258.

52 Id. at 258–59; Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment 30–31 (1991).

53 Sullivan, 376 U.S. at 258; Lewis at 7, 28–29.

54 Lewis at 33.

55 New York Times Co. v. Sullivan, 273 Ala. 656 (1962), rev’d, 376 U.S. 254 (1964).

56 New York Times Co. v. Sullivan, 371 U.S. 946 (Jan. 7, 1963) (granting certiorari).

57 Lewis, supra note 52, at 120.

58 W. Wat Hopkins, Actual Malice: Twenty-Five Years After Times v. Sullivan 76 (1989). For a detailed history of the actual malice concept, see Matthew Schafer, Actual Malice: The Bit That Justice Thomas Left Out, Medium, Jan. 26, 2021, https://matthewschafer.medium.com/actual-malice-the-bit-that-justice-thomas-left-out-1a464f82f693.

59 Lewis, supra note 52, at 120; Hopkins, id., at 48–49 (1989). For a history of the development of common law malice, see Hopkins at 49–67 (1989).

60 One of Brennan’s clerks later said that the Times’s brief led to the discovery of courts’ common law usage of actual malice. Seth Stern & Stephen Wermiel, Justice Brennan: Liberal Champion 224 (2010).

61 Hopkins, supra note 58, at 91–92.

62 New York Times v. Sullivan, supra note 50, 376 U.S. 254 (1964). Justices Hugo Black and Arthur Goldberg both filed separate concurring opinions, with Justice William O. Douglas joining both concurrences. Id. at 293 (Black, J., concurring); Id. at 297 (Goldberg, J., concurring).

63 Id., 376 U.S. at 279–80.

64 See text accompanying note 58, supra.

65 Lewis & Ottley, supra note 22, 64 DePaul L. Rev. at 21.

66 Hopkins at 116 (“The publisher could love or hate the subject of the libel; the important questions became whether the publisher knew the material published was false or whether he acted with reckless disregard of the truth”).

67 Kermit Hall & Melvin Urofsky, New York Times v. Sullivan: Civil Rights, Libel Law, and the Free Press 182 (2011).

68 Harry Kalven, Jr., The New York Times Case: A Note on “The Central Meaning of the First Amendment,” 1964 Sup. Ct. Rev. 191, 221 n. 125 (1964).

69 Lee Levine & Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan 33 (2011).

70 379 U.S. 64, 67 (1964).

71 388 U.S. 130, 155 (1967).

72 Gertz, supra note 20, 418 U.S. at 342 (describing Curtis Publishing Co., id.).

73 Monitor Patriot Co. v. Roy, 401 U.S. 265, 271 (1971).

74 Gertz, 418 U.S. at 347.

75 Id. at 351.

76 Time, Inc. v. Firestone, 424 U.S. 448, 454 (1976).

77 Gertz, 418 U.S. at 347.

78 Id. at 349 (“States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth”).

79 William F. Cuozzi & Lee Sporn, Note, Private Lives and Public Concerns: The Decade Since Gertz v. Robert Welch, Inc., 51 Brook. L. Rev. 425, 428 n.12, 454-55 (1985). New York recently passed legislation applying the actual malice standard to all defamation cases involving matters of public concern. See N.Y. Civ. Rts. L. § 76-a(2) (as amended by 2020 N.Y. Laws c. 250, § 2 (eff. Nov. 10, 2020)).

80 Sullivan, supra note 50, 376 U.S. at 278.

81 Id. at 279–80.

82 390 U.S. 727, 730 (1968).

83 Id.

84 Id.

85 Harte-Hankes Communications, Inc. v. Connaughton, 491 U.S. 657, 667 (1989) (quoting Garrison, supra note 70, 379 U.S. at 74, and St. Amant, supra note 82, 390 U.S. at 731).

86 Time v. Pape, 401 U.S. 279, 290 (1971); Hopkins, supra note 58, at 124.

87 Hopkins, supra note 58, at 123. See Bose v. Consumers Union, 466 U.S. 485, 512 (1984).

88 Harte-Hankes Communications, supra note 85, at 666. Justice John M. Harlan had proposed that this standard, rather than actual malice, should be required by public official defamation plaintiffs. See Curtis Publishing Co., supra note 71, 388 U.S. at 136; Hopkins, supra note 58, at 91–92.

89 Cantrell v. Forest City Pub. Co., 419 U.S. 245, 252–53 (1974).

90 Hopkins, supra note 58, at 138.

91 See, e.g., Elena Kagan, A Libel Story: Sullivan Then and Now, 18 L. & Social Inq. 197, 211 (1993).

92 See e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 767 (1985) (White, J., concurring in judgment); id. at 764 (Burger, C.J., concurring); Coughlin v. Westinghouse Broadcasting, 476 U.S. 1187 (1986) (Burger, C.J., with Rehnquist, J., dissenting from denial of certiorari); McKee v. Cosby, 139 S.Ct. 675 (Mem), 203 L.Ed.2d 247 (Feb. 19, 2019) (Thomas, J., concurring in denial of certiorari); Berisha v. Lawson, 141 S. Ct. 2424, 2427, 210 L. Ed. 2d 991, 991 (July 2, 2021) (Gorsuch, J., with Thomas, J., dissenting from denial of certiorari); and Coral Ridge Ministries Media, Inc. v. Southern Poverty Law Center, 597 U.S. 3396, 142 S.Ct. 2453, 2022 U.S. LEXIS 3099 (June 27, 2022) (Thomas, J., dissenting from denial of certiorari). For details on these legal criticisms, see Lewis & Ottley, supra note 22, 64 DePaul L. Rev. at 34–36. Justice Elana Kagan criticized the decision before joining the bench. See Kagan, supra note 91.

93 For a summary of these academic criticisms, see Lewis & Ottley, id., 64 DePaul L. Rev. at 27–33.

94 Cass R. Sunstein, The Dark Side of New York Times v. Sullivan, Bloomberg View, Mar. 25, 2014, https://www.bloomberg.com/opinion/articles/2014-03-25/the-dark-side-of-new-york-times-v-sullivan.

95 Id.

96 Herbert v. Lando, 441 U.S. 153, 170 (1979). See Hopkins, supra note 58, at 121. For this reason, defamation defendants cannot avoid disclosure of editorial conversations and of a reporter's conclusions about the veracity of the material (s)he has gathered. Herbert at 171.

97 Hopkins, id., at 127.

98 John Gardner, The Mysterious Case of the Reasonable Person, 51 U. Toronto L.J. 273, 273 (2001), https://doi.org/10.2307/825941.

99 Mayo Moran, The Reasonable Person: A Conceptual Biography in Comparative Perspective, 14 Lewis & Clark L. Rev. 1233, 1234 (2010), https://ssrn.com/abstract=2297553.

100 Id. at 1238.

101 Id. at 1240.

102 Id.

103 Schafer, supra note 58.

104 Volokh, supra note 36 (emphasis in original).

105 St. Amant, supra note 82, 390 U.S. at 730 (emphasis added). See text accompanying note 84, supra.

106 Id.

107 Id. at 732.

108 Id. (emphasis added).

109 Sidney Powell’s attorneys in fact made this argument in their attempts to get Dominion’s lawsuit against Powell dismissed. See note 4, supra.

110 US Dominion, Inc. v. Powell, supra note 25, 554 F. Supp. 3d at 63–64 (citations omitted).

111 Jordan Nathaniel Fenster, On Sandy Hook, Alex Jones Says ‘They’ Are Coming for 1st, 2nd Amendment. Why Experts Say He's Wrong, Stanford [Ct.] Advocate, Oct. 1, 2022, https://www.stamfordadvocate.com/news/article/How-Alex-Jones-gets-the-Constitution-wrong-17478483.php.

112 Hopkins, supra note 58, at 144.

113 Id.

114 Id. at 127 (describing the holding in Hustler Mag., Inc. v. Falwell, 485 U.S. 46 (1988)).

115 See text accompanying notes 44–49, supra.

116 See text accompanying note 31, supra.

117 568 So. 2d 927, 928 (Fla. Dist. Ct. App. 1990), rev. denied, 581 So.2d 166 (Fla. Mar. 15, 1991).

118 186 F.3d 505 (4th Cir. 1999), cert. denied, 528 U.S. 1118 (2000).

119 Id. at 542.

120 See note 78, supra, and accompanying text.

121 Wells, 186 F.3d at 542.

122 Id.

123 Id. Specifically, the court noted that “Liddy also knew that in 1992 Bailley [the source] had gotten into an altercation with a security guard at the Library of Congress during which Bailley told the guard that he was Star Caesar and that Bailley believed that the Green River murderers from Washington State were chasing him.” Id.

124 Id. at 543. Law professor Ciara Torres-Spelliscy noted that former President Trump relied on similarly dubious sources in his “rigged” election claims. Ryan Goodman, 8 Top Experts on Strength of Dominion Suing Trump for Defamation, If It Wants To, Just Security, July 19, 2022, https://www.justsecurity.org/82447/8-top-experts-on-strength-of-a-dominion-defamation-case-against-donald-trump.

125 St. Amant, supra note 82, at 730. See text accompanying note 84, supra.

126 Harte-Hankes Communications, supra note 85, at 666. See text accompanying note 88, supra.

127 Lidsky & Anderson Jones, supra note 33, 23 Va. J. Soc. Pol’y & L. at 177 (discussing Gordon & Holmes v. Love, No. B256367, 2016 WL 374950 (Cal. Ct. App. Feb. 1, 2016) (unpublished) (appeal of jury verdict for defendant)). See text accompanying notes 133–136, infra.

128 892 A.2d 711, 719 (N.J. App. Div. 2006). The court also held that the statement had not been published to a third party because the concierge was an employee of the landlord. Id. at 717.

129 Silverman v. Progressive Broad., Inc., 1998-NMCA-107, ¶ 23, 964 P.2d 61, 68 (N.M. Ct. App. 1998) (emphasis added). See also Martinez v. Sears, Roebuck & Co., 1970-NMCA-029, ¶ 12, 467 P.2d 37, 41 (1970), cert. denied, 467 P.2d 997 (1970); Fikes v. Furst, 2003-NMCA-006, ¶ 20, 61 P.3d 855, 862 (N.M. Ct. App. 2003), rev'd in relevant part, 2003-NMSC-033, ¶ 20, 81 P.3d 545 (N.M. 2003); and Cisneros v. Cisneros, No. CV 05-1065 JH/WDS, 2007 WL 9734995, at *6 (D.N.M. Jan. 31, 2007). Accord N.M. Uniform J. Inst.-Civ. 13-1003 (jury instruction defining publication in a defamation case, including optional language that “If … the communication is only to a person who knows that the communication is false, then there has been no publication,” citing Martinez) and N.M. Uniform J. Inst.-Civ. 13-1002(B) (listing nine requirements of a defamation claim, including the requirement that “the person[s] (sic) receiving the communication understood it to be defamatory.” But see Fikes v. Furst, 2003-NMSC-033, ¶ 19, 81 P.3d 545, 551 (N.M. 2003) (discussing the issue in terms of defamatory meaning, not publication). See also Bonkowski v. Arlan's Dep't Store, 162 N.W.2d 347, 352–53 (Mich. App. 1968), rev'd, 174 N.W.2d 765, 767 (Mich. 1970), in which the Michigan Supreme Court rejected the lower appellate court’s ruling on this issue in terms of publication, and held that while “that fact [that plaintiff’s husband who heard statement knew it was false] does not dilute the fact of legal publication, or affect the cause except as it may bear upon the recoverable amount of the plaintiff's damages”).

130 485 U.S. 46, 50 (1988).

131 Id. at 57.

132 Id. at 50.

133 Lidsky & Anderson Jones, supra note 33, 23 Va. J. Soc. Pol’y & L. at 177. See also Gordon & Holmes v. Love, supra note 127. Holmes had represented Love in two prior cases over tweets disparaging fashion designer Dawn Simorangkir, which ended with settlements totaling $780,000. Eriq Gardner, Courtney Love Ends Defamation Row With $350K Settlement, Hollywood Rptr., Aug. 27, 2015, https://www.hollywoodreporter.com/business/business-news/courtney-love-ends-defamation-row-818025/#!.

134 Melisa Iscan, Courtney Love Is Struggling with Mental Health Problems, RockCelebrities.net, Oct. 31, 2021, https://rockcelebrities.net/courtney-love-is-struggling-with-mental-health-problems.

135 Lidsky & Anderson Jones, supra note 33, 23 Va. J. Soc. Pol’y & L. at 177.

136 Gordon & Holmes, supra note 127, 2016 WL 374950 at *3.

137 Id. at *6.

138 Id.

139 Lidsky & Anderson Jones, supra note 33, 23 Va. J. Soc. Pol’y & L. at 177.

140 Goodman, supra note 124.

141 Id.

142 Id.

143 Parloff, supra note 27.

144 Lidsky & Anderson Jones, supra note 33, 23 Va. J. Soc. Pol’y & L. at 177.

145 Goodman, supra note 124.

146 “If, as under the actual malice standard, subjective intent is a prerequisite to liability, it is particularly within the province of the jury to assess the defendant’s state of mind at trial.” Lee Levine, Judge and Jury in the Law of Defamation: Putting the Horse Behind the Cart, 35 Am. U. L. Rev. 3, 23 (1985).

147 See notes 2–15, supra, and accompanying text.

148 51 A.L.R. 833, supra note 45, at 836. See, e.g., Wilson v. Walt, supra note 49 (affirming verdict for defendant in slander case, implying that jury found that mentally disabled defendant’s comments were not believed and thus did not harm plaintiff’s reputation). See note 49, supra.

149 Capograsso, supra note 128, 892 A.2d at 718.

150 Ricciardi v. Weber, 350 N.J. Super. 453, 478, 795 A.2d 914, 928 (App. Div. 2002), abrogated on other grounds by Salzano v. N. Jersey Media Grp. Inc., 201 N.J. 500, 993 A.2d 778 (2010). See also Nanavati v. Burdette Tomlin Mem’l Hosp., 857 F.2d 96, 109 (3d Cir. 1988), cert. denied, 489 U.S. 1078 (1989)). (“The injury alleged here borders on the metaphysical. The facts indicate that no one who heard the slander believed it, and those who repeated the slander did so only to express outrage at the speaker.”)

151 See note 25, supra.

152 Jon Greenberg, Most Republicans Still Falsely Believe Trump’s Stolen Election Claims, Politifact, June 14, 2002, https://www.politifact.com/article/2022/jun/14/most-republicans-falsely-believe-trumps-stolen-ele.

153 Fairleigh Dickenson University, Beliefs About Sandy Hook Cover-Up, Coming Revolution Underlie Divide on Gun Control (press release), May 1, 2013, https://portal.fdu.edu/newspubs/publicmind/2013/guncontrol/final.pdf.

154 Id.

155 Alexander & Szasz, supra note 29, 43 Notre Dame L. at 35.

156 See note 152, supra.

157 See text accompanying notes 191–192, infra.

158 Alex Jones’s father, who works for his son, testified in the Connecticut trial that Alex Jones’s “puffery” drove sales of his nutritional supplements and other products he sells. Cara Salvatore, Jones' Father Tells Jury 'Puffery' Key To Infowars' Success, Law360, Sept, 29, 2022, https://www.law360.com/articles/1535608/jones-father-tells-jury-puffery-key-to-infowars-success.

159 See text accompanying notes 130–132, supra.

160 497 U.S. 1, 20 (1990). But when “a statement of ‘opinion’ … reasonably implies false and defamatory facts” regarding a plaintiff, it may be held to be defamatory upon a showing that it was made with the requisite level of fault. Id., See also Clifford v. Trump, 339 F. Supp. 3d 915, 926–27 (C.D. Cal. 2018), aff'd, 818 F. App'x 746 (9th Cir. 2020), cert. denied, 141 S. Ct. 1374, 209 L. Ed. 2d 120 (2021).

161 Gross v. New York Times Co., 623 N.E.2d 1163, 1167 (N.Y. 1993).

162 Besides Gross and Milkovich, 497 U.S. at 16, such cases include Hustler Mag. v. Falwell, supra note 130, at 50; and Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 284–86 (1974).

163 Gross at 1168 (citations omitted) (referencing Milkovich, 497 U.S. at 26–27, 28, n. 5 (1990) (Brennan, J. dissenting)).

164 McDougal v. Fox News Network, LLC, 489 F. Supp. 3d 174, 182 (S.D.N.Y. 2020).

165 Clifford, supra note 160, 818 F. App'x at 749, cert. denied, 141 S. Ct. 1374, 209 L. Ed. 2d 120 (2021).

166 McDougal at 182; Greenbelt Co-op. Pub. Ass'n v. Bresler, 398 U.S. 6, 14 (1970).

167 McDougal at 182; Hogan v. Winder, 762 F.3d 1096, 1108 (10th Cir. 2014).

168 Small Bus. Bodyguard Inc. v. House of Moxie, Inc., 230 F. Supp. 3d 290, 311 (S.D.N.Y. 2017).

169 Catherine J. Ross, A Right to Lie? Presidents, Other Liars, and the First Amendment 51–52 (2021).

170 See McDougal, supra note 164.

171 Tucker Carlson, Politicians, Partisans, and Parasites: My Adventures in Cable News 33 (2003).

172 McDougal, supra note 164, 489 F. Supp. 3d at 183–84 (“Fox persuasively argues that given Mr. Carlson's reputation, any reasonable viewer arrive[s] with an appropriate amount of skepticism about the statements he makes” (citation and quotation marks omitted)).

173 See Associated Press, Tucker Carlson’s Scorn for Trump Revealed in Defamation Lawsuit Filings, PBS NewsHour, Mar 8, 2023, https://www.pbs.org/newshour/politics/tucker-carlsons-scorn-for-trump-revealed-in-defamation-lawsuit-filings.

174 Id. After the disclosure Carlson said that he was “enraged” that the text messages had been released to the public, and said the texts were in response to particular false information that a Trump campaign aide had given him regarding alleged voting irregularities, while Fox News issued a statement that Dominion was using “more distractions and misinformation” to “smear FOX News and trample on free speech and freedom of the press.” Summer Concepcion, Tucker Carlson Backtracks on Private Texts Saying He Hates Trump: 'I Love Trump', NBC News, Mar. 22, 2023, https://www.nbcnews.com/politics/donald-trump/tucker-carlson-backtracks-private-texts-saying-hates-trump-love-trump-rcna76056.

175 See text accompanying notes 2–6, supra.

176 Ross, supra note 169, at 55. Interestingly, in the case brought against it by Dominion over its coverage of Powell’s and others’ 2020 election fraud claims, Fox News avoided the issue of whether it believed the allegations, arguing that it was simply reporting on a major public controversy. On the eve of trial, the court held that Fox could not make this argument. Jeremy W. Peters, Judge Limits Fox’s Options for Defense in Dominion Trial, N.Y. Times, Apr. 11, 2023, https://www.nytimes.com/2023/04/11/business/fox-news-dominion-trial.html.

177 567 U.S. 709, 726 (2012) (plurality opinion). The award is “the highest military award for valor against an enemy force” and “is reserved for those who have distinguished themselves ‘conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty.’” Id. at 724–25 (quoting legislation enabling the award).

178 Id. at 715.

179 Alan K. Chen, Free Speech, Rational Deliberation, And Some Truths About Lies, 62 Wm. & Mary L. Rev. 357, 378 (2020): see also U.S. v. Alvarez, 567 U.S. at 719 (plurality opinion), 734–38 (Bryer, J., concurring).

180 U.S. v. Alvarez, 567 U.S. at 723 (plurality) and 734 (Breyer, J., concurring).

181 Id. at 726. Congress later amended the statute to make knowledge of falsehood and intent to deceive elements of the crime, and to require that the lie be told “in order to obtain money, property, or other tangible benefit.” Stolen Valor Act of 2013, Pub. L. 113-12, 127 Stat. 448.

182 See text accompanying notes 2–5, supra.

183 This theory was first articulated by British philosopher John Stuart Mill, who wrote, “The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.” John Stuart Mill, On Liberty 31 (1901, 2011), available at https://www.gutenberg.org/files/34901/34901-h/34901-h.htm. The theory has been the basis of several Supreme Court decisions regarding freedom of speech. See David Schultz, updated by David L. Hudson, “Marketplace of Ideas,” First Amendment Encyclopedia (2009, 2017), https://mtsu.edu/first-amendment/article/999/marketplace-of-ideas.

184 U.S. v. Alvarez, supra note 177, 567 U.S. at 727–28 (citations omitted).

185 See note 25, supra.

186 See note 152, supra.

187 Gertz, supra note 20, 418 U.S. at 340.

188 U.S. v. Alvarez, supra note 177, 567 U.S. at 713.

189 See text accompanying notes 21–23, supra.

190 See text accompanying notes 152–154, supra.

191 See Associated Press, Sandy Hook Families Quickly Spurn Alex Jones Defamation Suit Settlement Offer, CBS News, March 30, 2022, https://www.cbsnews.com/news/sandy-hook-families-alex-jones-defamation-suit-settlement-offer.

192 Complaint, US Dominion, Inc. v. My Pillow, Inc., supra note 24, at 82.

193 Daniel Hemel & Ariel Porat, Free Speech and Cheap Talk, 11 J. Legal Analysis 46, 66 (2019), https://doi.org/10.1093/jla/laz004.

194 See text accompanying notes 27 and 104, supra.

195 Digital Media Law Project (Berkman Center for Internet & Society, Harvard University), Proving Fault: Actual Malice and Negligence (n.d.), https://www.dmlp.org/legal-guide/proving-fault-actual-malice-and-negligence.

196 See text accompanying note 114, supra.

197 The “true threats” test described here is current as of March 2023. The standards may change as a result of the U.S. Supreme Court decision in Counterman v. Colorado, No. 22-138, cert. granted, 143 S.Ct. 644 (mem.), 214 L.Ed.2d 382 (U.S argued Apr. 19, 2023) (appeal of People v. Counterman, 497 P.3d 1039 (Colo. App. 2021)).

198 Paul Crane, Note, “True Threats” and the Issue of Intent, 92 Va. L. Rev. 1225, 1235–36 (2006) (citations omitted).

199 Id. at 1246.

200 Renee Griffin, Searching for Truth in the First Amendment’s True Threat Doctrine, 120 Mich. L. Rev. 721, 731 (2022) (citations omitted).

201 573 U.S. 916 (2014) (granting certiorari of U.S. v. Elonis, 730 F.3d 321 (3d Cir. 2013)).

202 575 U.S. 723, 727 (2015).

203 Id. at 740.

204 Zachary Stoner, What You Rhyme Could Be Used Against You: A Call for Review of the True Threat Standard, 44 Nova L. Rev. 225, 236 (2020).

205 See note 197, supra.

206 See text accompanying notes 152-154, supra.

207 Sullivan, supra note 50, 376 U.S. at 270.