The Defamation Lawsuit is Essential to Our Future

Written by Todd McMurtry

March 18, 2021

Billionaire Chamath Palihapitiya recently tweeted that we “may be one defamation lawsuit away from canceling cancel culture.” Palihapitiya was suggesting a person defamed by a comment made by a New York Times reporter should sue. The reporter falsely alleged on Twitter that this person had made the R-slur during a session on the social media app Clubhouse. His point is that the only way to hold corporatist-media to account for profit-driven, non-stop misrepresentations and false reporting is through defamation lawsuits.

Most people attacked by corporatist-media are known as a “public figure” or a “limited purpose public figure.” For one of these people to hold the media to account for misrepresentations and false reporting, they must prove that the reporter made a statement that was defamatory and that it was made with “actual malice.” This is generally defined as “an evil intent or motive arising from spite or ill will; or culpable recklessness or willful and wanton disregard of the rights and interests of the person defamed.” This is hard to prove, because reporters often do just enough work to pretend they acted in good faith. There are, however, ways to attack corporatist-media when the reporters write hit pieces instead of news.

When a reporter relies on biased or anonymous sources, issues threats or other negative statements, demonstrates ill will or hostility, or is a rival, such conduct may support a claim of actual malice. A reporter’s bias might also support an allegation of actual malice. For example, if a reporter has a business relationship with one party and then writes a hit piece on that party’s business competitor, the business competitor can point to the reporter’s bias to prove actual malice. By these standards, many hit pieces may be actionable.

So, what is to be done? We need more suits against corporatist-media that engages in writing hit-pieces. These efforts might expand the law to make the chances of success in such litigation more likely. Justice Clarence Thomas has suggested that the law is ripe for change. As well, if they know they will be sued for their actions, they might be more careful about what they write. The problem is the time and expense of pursuing litigation. Most people cannot afford to pay an attorney by the hour and most attorneys can only handle so many contingency fee cases, especially ones that present the unique challenges of defamation litigation.

What is needed is a public interest law firm. Such a firm is a private firm, like any other, but it is focused on representing a particular cause. It is not profit oriented but is instead issue oriented. Such a firm would rely upon outside funding to operate, as its cases would not necessarily make money. Perhaps billionaires such as Palihapitiya can spare a little change to empower a public interest law firm dedicated to taking on the corporatist media. This effort could rebalance the relationship between corporatist-media and those it attacks.

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