For sixty years, the Supreme Court has required “public figures” to prove that a media outlet acted with “actual malice”— that is, intent to publish false information or reckless disregard for publishing it — in order to recover damages for false statements about them. But this onerous test has no basis in the history of the First Amendment, and recent events illustrate why the Court should heed calls to reexamine its misguided precedent.

After hedge fund luminary Bill Ackman excoriated university presidents for their disastrous congressional testimony in defense of genocidal antisemitic speech that would not be tolerated against any other group of students, Business Insider published accusations of plagiarism against Ackman’s wife, Neri Oxman — accusations that she and Ackman vehemently deny. Since then, Ackman claims that his attorneys have found that at least half of the accusations are false, while the bulk of the others do not fall under the common understanding of plagiarism. Business Insider is standing by its reporting. 

[M]aking media companies pay for publishing false information about someone … may start to restore legitimacy to an institution Americans no longer trust.

Ackman has confirmed a lawsuit is forthcoming. While the court will have to determine whether each Business Insider claim was true or false, and therefore consider what exactly constitutes “plagiarism,” perhaps the more interesting question is whether Business Insider can get away with lies regardless.

Under the current standard for “defamation” — a legal claim that someone lied about you, causing harm — articulated by the U.S. Supreme Court in New York Times Co. v. Sullivan in 1964 and since expanded by lower courts, a “public figure” seeking to recover damages must show that the defamatory statement was made with “actual malice.” In other words, the speaker or publisher must have known that the statement was false or acted with reckless disregard of whether or not it was false. Whether someone is a public figure is a multi-factor but ultimately expansive test that captures almost anyone who has achieved a measure of public recognition or success in his or her field. 

Nonpublic figures, meanwhile, need only show that the published material is false and meet the other elements of the state law under which they are suing.

The actual malice standard is extremely difficult to meet, in large part because it requires showing the state of mind of a third party. This standard helps explain why, in effect, the press has free rein to publish the amount of false information we see today. 

There have been increasing calls for the Supreme Court to reconsider the heightened “actual malice” standard. Many of these calls have come from originalists — the most prominent being Justice Clarence Thomas — who argue that the standard has no basis in the original understanding of the First Amendment and that libel law traditionally has been left to the states. 

Public figures often have the most to lose from false accusations targeting their reputation or life’s work. While social media provides a digital megaphone to every individual potentially targeted by false accusations, subsequent denials and corrections almost never get as much traction as an inflammatory accusation hot off the press. 

When the Supreme Court imposed the “actual malice” standard, it reasoned that a lesser standard would inhibit criticism of public officials and dampen public debate on important issues. But that free exchange and debate is far easier in today’s world, when social media has shattered the gatekeeping function of traditional media and now breaks news and circulates gossip through multiple channels, allowing truth to be exposed at an unprecedented speed. These accounts are too numerous, too anonymous, and too judgment-proof to be collectively silenced by a return to the original understanding of the Constitution. And states, the laboratories of democracy, can and do impose different requirements for libel claims to ensure public debate remains robust while protecting individuals from harmful falsehoods.

In addition, making media companies pay for publishing false information about someone — including “public figures” — may start to restore legitimacy to an institution Americans no longer trust.

This won’t happen overnight. Any suit filed by Oxman would take years to work its way to the Supreme Court. Until the Court reconsiders its Sullivan precedent, we are left with public outcry as the sole protection from media outlets levying careless and damaging accusations against countless Americans.