The U.S. Supreme Court has generally granted leeway for journalists and journalistic outlets to publish or say inaccurate things, as long as the errors are made in good faith. Much of the relevant case law within the context of journalism falls under the umbrella of libel, which refers to the publication of a false statement of fact that seriously harms someone’s reputation. (Regular oral speech that is not published—with publication being anything from a printed news article to a broadcast story that airs to a tweet that appears online—falls under the umbrella of slander.)
Libel charges require the plaintiff—that is, the injured party—to prove a few different things.
First, they must prove that the defendant published the defamatory statement, meaning that they distributed it to someone besides themselves and the plaintiff. There is no requirement that the statement be distributed broadly or to the general public; simply posting it on the Internet may be enough.
Second, they must prove that a ‘reasonable person’ will infer that the statement is about the plaintiff. The statement does not need to name the person explicitly, so long as there is enough identifying information that those who know the plaintiff will recognize the statement as being about them.
Third, the plaintiff must prove that the statement harmed their reputation, as opposed to being merely insulting or offensive. Generally speaking, it must be a false statement of fact that exposes a person to hatred, ridicule, or contempt; lowers them in the esteem of their peers; causes them to be shunned; or injures them in their business or trade. This could be satisfied, for example, if a statement alleges that the plaintiff is gay and the plaintiff can show that someone began treating them differently as a result of that information.
Fourth, the plaintiff must show that the statement was published with some level of fault. Fault requires that the defendant either did something they should not have done or failed to do something they should have.
Finally, the plaintiff must show that the statement was published without any applicable privilege. A number of privileges may be available depending on what was published by the defendant published and the source they relied upon for the information.
Within journalism, the most common defense against the charge of libel is truth. If a statement is truthful, then it does not matter if the plaintiff is harmed. For example, an article claiming that Prof. Zamith clubs baby seals for fun would not be libelous if I had repeatedly clubbed baby seals for personal enjoyment, even if the publication resulted in fewer students taking my classes. (For the record, I do not club baby seals, for fun or professional reasons.) Notably, the burden of proof is generally on the plaintiff to show that a statement is false—so I would have to show that there’s no evidence that I engage in such behavior—though it may fall to the defendant in some circumstances.
Statements of pure opinion, which cannot be proven true or false, cannot form the basis of a defamation (or libel) claim. For example, a statement that Prof. Zamith is a jerk is clearly a statement of opinion. Additionally, the standards for harm and fault do vary depending on the plaintiff’s position in society.
Two particular Supreme Court decisions have clarified the libel protections and responsibilities for journalists. In New York Times Co. v. Sullivan (1964), the Times was alleged to have committed libel by publishing a full-page advertisement by supporters of Martin Luther King Jr. that criticized the police in Montgomery, Alabama, for their mistreatment of civil rights protesters. The ad had a number of factual inaccuracies, such as the number of times King had been arrested during the protests, and the Times subsequently published a retraction of the advertisement. Nevertheless, Montgomery Public Safety commissioner, L. B. Sullivan, sued the Times. Although he was not named in the ad, he argued that the inaccurate criticism of actions by the police in the ad was defamatory to him because it was his duty to supervise the police department. In an unanimous decision, the Court ruled that “the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false) or in reckless disregard of their truth or falsity.”
Put another way, when it comes to public officials, in the context of carrying out their public duties, the plaintiff must show that the journalistic error was due to an intent to harm the official or as a result of recklessness—meaning a journalist plainly disregarded information that should have been evident to them. This is a very high bar, as it can be immensely difficult to prove a journalist’s intent to harm. Later cases extended the “actual malice” standard to encompass public figures, which include not only public officials but anyone who has gained a significant degree of fame or notoriety in general or in the context of a particular issue or controversy. This may include celebrities, elite athletes, or advocates who become embroiled in a public debate.
Later, in the case Gertz v. Robert Welch, Inc. (1974), the Supreme Court established a separate standard for private individuals, such as a teacher or local business owner. In this instance, a series of articles appearing in the magazine American Opinion claimed that Elmer Gertz, a lawyer who represented an individual shot and killed by a police officer, had orchestrated the officer’s conviction; that Gertz was a member of various communist front organizations; and that he had a lengthy criminal record of his own. In a 5-4 decision, the Supreme Court held that states could formulate their own standards of libel for statements made about private figures. In practice, this has resulted in a lower standard for private figures, whereby they need only show that a journalist was negligent, or that they failed to engage in basic journalistic practices like verifying some information prior to publication.
Libel refers to the publication of a false statement of fact that seriously harms someone’s reputation.
In the United States, libel claims usually must be proven by the plaintiff, and they must prove multiple things. In contrast, a defendant need only show that the statement was true or based on some form of privileged communication. Statements of pure opinion are not eligible for libel claims.
In the United States, public figures must clear a very high bar to succeed in a libel suit. The standards are much lower for private figures, though it is still a high bar.