Untying the Gordian Knot

Much like Alexander the Great’s “untying” of the mythical Gordian Knot in ancient Persia, tracking defamation litigation in this year’s US Presidential election season would appear to not only require formal legal training, but resort to some fairly unconventional tactics. But rather than slicing the metaphorical knot with brute force (as legend has it), this article shines a modest but revealing light on the history and principles of US defamation law to assist foreign jurists with its many technicalities and often perplexing uses. By surveying its peculiar and varying historical path, it also highlights its vital but increasingly veiled roles and uncertain legal implications in our complex digital media landscape. This article thus argues that care must be taken when addressing calls for defamation law reform to appreciate its multifaceted rationales and to uphold the press’ essential watchdog role under the First Amendment.

Among the mysteries of the historical volatilities of presidential electioneering is gauging the effect of defamation lawsuits as proxies for political distrust and dirty campaigning. At the center of this tempest is former President Donald Trump himself, whose antipathy for the media and misuse of defamation law is widely known. Yet the tables would appear to have turned. Despite his penchant for challenging oppositional political speech in court, the former President now finds himself an embattled defendant. Besides facing 91 felony charges across two state courts and in two federal districts, Trump is appealing two substantial civil law defamation judgments that could not only hobble his business empire, but threaten his presidential candidacy altogether. That said, Trump’s most recent libel claim against ABC News appears to hold out the prospect of his first successful lawsuit against the press since beginning his political career. But before getting into Trump’s web of litigation and his prospects for success, let’s first take a look at the history and basic principles of defamation law more generally.

English Defamation Law

Libel and slander (i.e. written and oral defamation) have a long history in English common law. Their concern with safeguarding one’s “good name” has conflicted with other prised interests, struggling above all to balance free speech against reputation. Long thought to hold special importance for democracies, US Federal Court Judge Van Vechten Veeder swore that despite its imperfections—when any legal system is considered systematically—perhaps no part is more instructive than defamation law. In a Columbia Law Review article more than a century ago, Veeder explained:

“Since the law of defamation professes to protect personal character and public institutions from destructive attacks, without sacrificing freedom of thought and the benefit of public discussion, the estimate formed of the relative importance of these objects, and the degree of success attained in reconciling them, would be an admirable measure of the culture, liberality, and practical ability of each age.”

Yet having no sooner affirmed its constitutional import, Veeder reproached defamation law for its undue complexity, reckoning that “[i]t is, as a whole, absurd in theory, and very often mischievous in its practical operation.” Apart from grasping its (mis)use in US politics, a closer look at defamation law’s infamously-knotty doctrine appears in order.

Constituent Elements

Defamation is a personal legal remedy and strict liability tort, which can be understood as any written or spoken statement that brings a person into hatred, contempt or ridicule, or lowers their reputation in the eyes of right-thinking people. While falsity, malice, and damages are presumed, plaintiffs must satisfy the following three elements (on a balance of probabilities).

First, a plaintiff must establish that the words were defamatory. This involves any discrediting statement: i) tending to cause a person to be hated or despised; ii) subjecting a person to ridicule; iii) causing others to shun the plaintiff; vi) imputing guilt in office; v) tending to injure a person’s business standing or financial credit; or vi) imputing immorality. Second, the plaintiff must prove that the words were published to a person (or persons) other than themselves. Publication can be by words, television, Internet, etc. Lastly, since defamation is a personal legal remedy, the plaintiff must be personally defamed.

Defences

Once these elements are met, the onus shifts to the defendant to prove one of four traditional defences, which encompass the key doctrinal means of “safeguarding” free expression.

Justification: The defence of justification requires establishing all material facts in a defamatory publication. It does not connote “moral” justification, but, that the defamatory words are “true,” and the defendant intends to prove it. A complete defence, its rationale is that no one is entitled to a reputation they do not in fact possess.

Fair Comment: This defence applies when the offending words are an opinion on a matter of public interest. So long as the underlying facts are accurate, the defamatory statement is protected—provided the opinion was one that an honest person knowing those facts could hold, and the comment was made in good faith.

Absolute Privilege: On certain occasions, a person is free to publish defamatory words even though communicated with knowledge of their falsity and with intent to injure. These are occasions of “absolute privilege,” which have been defined narrowly and are illustrated by the long-standing convention of parliamentary privilege.

Qualified Privilege: On occasions of qualified privilege, the defendant must have an interest or some legal, moral, or social duty in communicating what they believe true about another person to someone with a corresponding duty or interest in receiving that information. The privilege is “qualified” because if the defendant published maliciously or otherwise exceeded the occasion’s scope, the defence is lost.

Effects on Public Discourse

Defamation principles influence democratic discourse in two crucial respects. First, as shown by the short-lived Alien and Sedition Act of 1798—used to arrest newspaper editors critical of Federalist President John Adams and his undeclared naval war with Revolutionary France—defamation law can be used to stifle political opposition through criminal prosecutions for seditious libel. Second, news organisations have until recently operated without an effective defence. Common law courts have traditionally insisted that publication methods not exceed what is appropriate for protecting the particular duty or interest asserted. This has meant that defamatory statements could not be lawfully published to the “world at large.” Media defendants were thus limited to the defence of justification, which raises evidentiary doubts and steep litigation costs that often exert a “chilling effect” on public interest news reporting.

As illustrated by recent law reforms, defamation law’s main policy challenge is therefore balancing free expression and reputation. As the UK Parliament stated aptly in the Introduction to its 2011 Draft Defamation Bill, “[a]ny slight shift in the balance between these two competing rights […] can have far-reaching consequences for the way […] we conduct public debate.” In simple terms, what is added to defamation law is invariably taken from free speech.

Overview of US Defamation Law

US defamation law differs greatly from its English origins. Uniquely protective of speech and press liberty, it has been shaped by two overriding factors: (1) the First Amendment to the US Constitution; and (2) the US Supreme Court’s later constitutionalisation of defamation law.

First Amendment

Freedom of speech and the press are both protected under the First Amendment, which reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Owing to its unqualified wording, the First Amendment appears to provide unqualified protection of speech interests. Despite being ratified in 1791, its impact on defamation law was not settled until the US Supreme Court’s 1964 decision in New York Times v Sullivan, where the Court rejected English libel principles by increasing the burden of proof for plaintiffs, making it notoriously difficult for public officials to be suited in defamation.

New York Times v Sullivan

The Sullivan case was very much a product of its turbulent civil rights era. LB Sullivan was the Commissioner of Public Affairs for Montgomery, Alabama, who sued The New York Times for defamation regarding a full-page, paid political advertisement sponsored by prominent civil rights advocates. The ad documented (with minor errors) significant events of political opposition and police misconduct involving African American students engaged in non-violent protests. Although Sullivan was not named, he argued that readers would identify him as the responsible public official. At trial, an all-white jury awarded $500,000 in damages (≈$5,000,000 in 2024), a substantial sum upheld by the Alabama Supreme Court.

In rejecting defamation law’s strict liability doctrine, the US Supreme Court unanimously held that the appellate verdict violated the First Amendment. Justice Brennan’s majority judgment affirmed America’s commitment to unrestricted political discourse by insisting that it “should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Analogising English libel law to America’s failed Sedition Act, Brennan insisted that “[w]hat a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel,” underscoring that the damage award against the New York Times was a crippling one hundred times greater than under the Federalist-era Act.

In response, the US Supreme Court adopted a generic, bright-line rule prohibiting public officials from recovering damages for defamatory statements relating to their official conduct unless they proved (with convincing clarity) that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. The Sullivan Court thereby radically shifted the doctrinal balance between reputation and free speech—making it tougher for public officials to prevail. Since Sullivan, constitutional protection has been extended so that both public officials (e.g. Nancy Pelosi) and public figures (e.g. Elon Musk) can recover damages only if the defamatory statement was made with “actual malice.” Lastly, US states are free to define the standard of liability for private individuals, provided that they do not (re)impose strict liability principles.

Conclusion

So, what does this all mean? Two points bear mention. First, despite shedding light on Trump’s woeful defamation record challenging oppositional speech, it would be a mistake to think a plaintiff politician or public figure cannot succeed. As shown by Trump’s most recent libel claim against journalist George Stephanopoulos and ABC News, the evidence adduced at trial will be decisive for satisfying Sullivan’s exacting standard. During his interview with South Carolina Congressional Representative Nancy Mace on 10 March 2024, Stephanopoulos questioned her about endorsing Trump in the 2024 presidential election. Referencing his ongoing legal battles with Elizabeth Jean Carroll, Stephanopoulos asserted multiple times that Trump had been found “liable for rape” by the jury—a factually incorrect statement. Although his lawyers will still need to prove that Stephanopoulos acted with “reckless disregard for the truth” (i.e. Trump is a “public figure”), making repeated false statements involving rape allegations could be argued as evidence of “actual malice,” especially if it can be proved that Stephanopoulos was aware at all material times of the jury’s finding. In the final analysis, given Trump’s history of sexual assault allegations, whether this is enough to prevail against the press is uncertain. But, as in most all common law litigation, the evidence adduced at trial will likely prove dispositive.

Second, irrespective of Sullivan’s revered constitutional status—Alexander Meiklejohn famously declared it an occasion “for dancing in the streets”—US defamation law is being threatened on multiple fronts. Besides Trump’s long-standing interest in overruling Sullivan, our digital media environment is placing increasing pressure on judges to reconsider the “actual malice” rule, particularly in bids to address disinformation and fake news. Concerned that America’s media landscape has changed unforeseeably, US Supreme Court Justice Neil Gorsuch has doubted whether Sullivan serves its original purpose, questioning whether it incentivises irresponsible journalism, which—when combined with business incentives fueling disinformation and fake news—threatens the shared epistemic grounds necessary for healthy democratic discourse. As expressed in his Berisha v Lawson dissent, rethinking the Sullivan rule will not only require an open-minded approach to competing doctrine, but to the very questions we should be asking. Along with examining our radically altered media landscape, these questions might very well include whether American free speech law undertheorises key rationales—particularly the “checking function” of the press and its public libel law implications for holding power to account—or, whether it adequately reflects the censorship risks (i.e. digital prior restraints) associated with our global digital media infrastructure. Without exploring such issues, it may prove ironic to overrule one of the last doctrinal pillars of the press’ vital (but waning) watchdog role. Revealing yet again the challenges of unraveling defamation law’s infamous technicalities, we would do well to exercise caution when pulling on key threads of the intricate tapestry of US First Amendment law.