Defamation Lawsuits & SLAPPbacks

When talking about the First Amendment, the issue of 'freedom of the press' often arises, along with 'fake news.' But is the press truly safeguarded by the First Amendment?

To answer that, we should first discuss whether the First Amendment should be able to act as a shield for the press and reporters. Should the press be offered the same rights and protections as citizens? After all, journalists are often acting on behalf of a company. But what about independent journalists? Should we consider the press's role in our free society when holding them accountable for the things they publish?

The First Amendment should be a shield for reporters and news outlets in circumstances of protecting the public. The press is in a peculiar place in our society where they are the trusted issuers of news. They are observers of events and information to which the public is not necessarily entitled. They have access to confidential information and can decide whether to share it or not. The reporter and outlet must not be obligated to share confidential information or sources in court to protect themselves, their journalistic integrity, and the source of information.

Because of the access journalists have and their duty to do no harm and share information with Americans, we have federally implemented shield laws that protect the press beyond the First Amendment. This shield is necessary as weaponized defamation lawsuits against press members are rising.

Weaponized defamation lawsuits against members of the media are concerning. Defamation is loosely defined in theory, making lawsuits against journalists and news outlets unrealistic. As David Anderson defines in Rethinking Defamation, a defamatory statement exposes a person to "...hatred, contempt, or ridicule." Essentially, anyone could claim anything as defamatory to shut down the press's ability to run a story on them.

Defamation lawsuits are bad press for the press. Plaintiffs must prove that a claim made by the media resulted in measurable harm to win their case, which is why defamation lawsuits have become so weaponized. More than anything, it is an intimidation tactic meant to eliminate a source. Strategic lawsuits against public participation (SLAPP) have seemingly become more frequent since digital media eruptions. Luckily in California, we have strong anti-SLAPP laws. Successful defendants who can prove the plaintiff erroneously filed the lawsuit to harass or silence them can file a 'SLAPPback.' A SLAPPback allows the defendant to recoup money and damages from the falsely filed legal proceedings. SLAPPbacks, or anti-SLAPP laws, help prevent people from utilizing defamation lawsuits to prevent someone from using their First Amendment rights. Utilized correctly, the defendant can move to strike the case under the precedent that the speech was of public concern. Anti-SLAPP statutes are helpful, and as they evolve and as we get more shield laws, the press can ensure its protection. They should not be shielded or absolved from all responsibility, but they should not be intimidated or blocked from performing their duties.

Unfortunately, even the media is a polarizing topic of discussion. I believe the flagrant and repeated use of the term 'fake news' had much to do with that. Nevertheless, the First Amendment is one of our country's most respected and expected rights, and this does extend to the press. It is crucial to our democracy that individual citizens not only have these rights preserved, but journalists and news outlets do too.

Author's Note: I originally wrote this in 2021 on another personal blog site. I am just now getting around to republishing on this blog.