It really is hard to define how the 1st Amendment should work in today’s society, especially with how difficult it has become to stay on track of the stories being circulated today. I definitely agree that protection should be guaranteed to the media and journalists, there’s no denying that.
Where I have trouble is in the instance of fake news/misinformation. For example, recently a story about fraud came out, with the story being reported by rookie social media influencer Nick Shirley, where they alleged mass fraud being committed by Somalian immigrants in daycare center.
There have in fact been instances of fraud in Minnesota involving daycares, but with this story in particular there has been several inaccuracies. There have been reports that he visited one of the daycares after hours, that there are policies in place to protect the children from unknown visitors, and that workers purposefully prevented Shirley and his crew from entering for refusing to identify themselves and attempting to record the children.
And what did the media do? Most outlets reported on the story without double checking his claims, writing clickbait headlines aiming at gaining attention instead of informing the public. New York Times Co. v. Sullivan established a higher threshold for malicious intent, making it so that negligence by itself is not enough to prove defamation for public figures.
I’d have to disagree with that threshold. Negligence in itself is malicious, with or without intent, and should be held against media companies. It does become a slightly more contentious topic when involving public figures, in particular politicians, but even in those cases negligence cannot be disregarded on part of the media company. Especially when reporting on figures we are supposed to trust.
It is their duty to report the daily events as accurately as possible. Negligence is enough to get a student expelled from a university if they don’t cite correctly, why are media companies held to a lower standard?
This is where I believe anti-SLAPP (strategic lawsuits against public participation) policy can help bridge the gap between malicious lawsuits versus attempting to hold the media accountable. The article from Reporters Committee mentioned how some anti-SLAPP policies place the burden on the plaintiff to prove probability of success in their case, and some take it a step further by forcing them to pay the defendant’s legal fees if they cannot prove probability.
I think they can take it a even further.
I read about a progressive fine system for traffic used in other western nations that I believe can be applied here. If an individual attempts a SLAPP suit, and they cannot prove liability, then harsh measures must be taken to prevent it from happening again. The same for companies. This can take into account income, the frequency, the case being considered, but overall it would be a system that if they can prove probability, they’ll go on with the case. If they can’t, harsh measures are taken to ensure they don’t attempt another sham suit.
Anti-SLAPP policies are not just about protecting companies, but private citizens too. Freedom of expression and press are so important, but so is accountability. Each side has to be liable for their actions, depending on the severity, and anti-SLAPP reform can help to make much needed progress.
