Standards Must Change: Fake News, Defamation, and Free Speech

Photo Credit: https://beconnected.esafety.gov.au/quick-reads/how-to-spot-fake-news (last visited December 14, 2021).

Authored By: Hunter Milliman

Member, American Journal of Trial Advocacy

          The right to freedom of speech and press enshrined in the First Amendment to the Constitution has been a cornerstone of American society for over two centuries.  This right is undeniably crucial for a healthy, robust democratic system fueled by contrary ideas and civil discourse, but what happens when the expansion of those rights beyond the intent of the Founders leads to fake news and uncivil discourse?  That is precisely what the case of McDougal v. Fox News Network, LLC illustrates to us.[i] 

  1. (No) Defamation in McDougal v. Fox News

            In McDougal, the plaintiff, better known by her stage name “Stormy Daniels”, sued Fox News alleging slander per se for statements made about her by Fox News host Tucker Carlson.[ii]  Specifically, Ms. McDougal pointed to statements by Carlson that “accused her of extorting [then] President Donald J. Trump out of approximately $150,000 in exchange for her silence about an alleged affair between her and President Trump.”[iii]  Carlson’s statements were more than just simply accusing McDougal for extortion: “Remember the facts of this story.  These are undisputed.  Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. Now, that sounds like a classic case of extortion.”[iv]  

            Fox did not dispute that the statement was in reference to McDougal, nor did they challenge McDougal’s defamation per se claim, but instead motioned to dismiss on the grounds that 1) no reasonable person would believe that Carlson’s statements were facts, and 2) that McDougal failed to allege actual malice.[v]  Viewing the evidence in McDougal’s favor, the district court ultimately granted Fox’s motion to dismiss on the grounds that 1) McDougal was a public figure and had to prove actual malice, which she failed to do, and 2) Carlson’s statements were “[n]ot [a]ctionable as [d]efamation” because they qualified as “rhetorical hyperbole” that no reasonable viewer would perceive as “actual facts.”[vi]

  1. Common Law Defamation v. Constitutional Defamation

            The court in McDougal did not rely on traditional common law defamation, but it is important to establish common law defamation to illustrate how the SCOTUS has deviated significantly in an odd way.  Historically, defamation (which includes libel and slander) required: “(1) a defamatory statement; (2) that is made of and regarding the plaintiff; (3) that is published to others; and (4) that (depending on the type of defamation involved) causes plaintiff injury.”[vii]  A statement was considered defamatory where it tended to either 1) harm the reputation of the defamed party within a community, or 2) deter people from associating with the defamed party.[viii]  Moreover, while typical slander actions required “proof of actual damage to the plaintiff’s reputation”, damage was presumed in slander per se actions.[ix]  For a slander per se action, if the defendant made a statement that, among other things, suggested the plaintiff had committed a crime, damage was presumed.[x]  Additionally, under common law, a truthful statement was not considered defamatory, and while falsity was a required element, it was presumed.[xi]

            This area of defamation law largely remains the same today, aside from the exceptions the SCOTUS carved out for media defendants (such as Fox News) and public official and public figure plaintiffs (such as McDougal). So what changes did the Court make?

            In McDougal, the district court applied a different standard to Ms. McDougal than that found in common law slander per se.  It applied what is referred to as constitutional defamation, which has its origins in New York Times Co. v. Sullivan.[xii]  In Times, the Court established a higher standard for defamation suits involving public officials that “prohibits a public official from recovering damages for [] defamatory falsehood[s] relating to his official conduct unless he proves 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.”[xiii]  The Court’s logic was that criticism of a public official’s performance was akin to criticism of the government, which was necessary for our democratic system.[xiv]  In creating the “actual malice” requirement, the Court also abolished any presumption of damage to the plaintiff’s reputation, requiring the plaintiff  prove actual harm to his or her reputation.[xv]  The Court would later establish that both prongs of actual malice are subjective, leaving no room for an objective argument for constitutional defamation claims.[xvi]

            This new rule itself has been heavily praised and criticized since the decision was handed down nearly six decades ago.  Perhaps one of the most notable critics of this decision was Justice Scalia, who viewed it as “revising the Constitution,” given that defamation was an area of law left to the states and “not limited by the U.S. Constitution.”[xvii]

            The Court did not stop creating exceptions in Times, however.  In Curtis Publishing Co. v. Butts, the media protection was expanded to “public figures,” that is, those individuals who attain a notable public figure status “position alone” or “purposeful activity amounting to a thrusting of his personality into the ‘vortex’ of an important public controversy.”[xviii]  This would now include individuals such as McDougal who, because of her career and involvement with President Trump, was in the vortex of public controversy.  Additionally, in Gertz v. Robert Welch, Inc., the media protection was expanded to cover matters of “public or general interest” (now more often referred to simply as “matters of public concern” as mentioned in Brennan’s dissent).[xix]  Gertz also confirmed that private individuals were not subject to the standards of constitutional defamation created in Times.[xx]

  1. The Problem and a Potential Solution

            The creation of a higher standard for defamation actions against media defendants has led to situations like the one shown in McDougal.  Under this standard, Carlson was able to make statements that clearly would establish a prima facie case for common law slander per se—he claimed that McDougal threatened Trump for money, and then immediately claimed it was a “classic case of extortion.”[xxi]  Because this was a statement accusing McDougal of committing a crime, common law would presume its damage to her reputation.[xxii]  McDougal also would have no requirement to prove the statements were not false, which would have been presumed.[xxiii]

            This case is so important to discuss is because of how it illustrates the issues surrounding the strong protections for news outlets under constitutional defamation and how this is a direct source of fake news.  Now, news outlets can quite literally label something as a “fact,” and spout falsities about individuals that have no legal recourse for being defamed.  But this is not the only concern this area of law creates; now there is legitimate concern as to the quality and factuality of statements made by news outlets.  As of 2016, sixty-four percent of U.S. adults say “made-up news” has caused “a great deal of confusion . . . about the basic facts of current events,” and as of 2019, more Americans viewed fake news as a bigger problem than violent crime, climate change, racism, illegal immigration, terrorism, and sexism.[xxiv]  To Fox’s argument that no reasonable viewer would believe Carlson’s statements to be actual facts, consider that forty-three percent of Americans trust Fox News, with sixty-five percent of Republicans trusting Fox News and fifty-one percent of moderate Republicans.[xxv]

            Considering the relatively strong trust in Fox News among Republicans alongside the universal concern regarding fake news, it’s difficult to believe that the Court got it completely right in Times when it changed defamation law for media defendants.  While there is significant value in the free speech of news media, there must be something in place to act as a check on the media for issues like this.  Without completely erasing constitutional defamation, one simple change that the Court could make would be to allow the “reckless disregard” prong of actual malice to be an objective inquiry.  By allowing one of the prongs to utilize objective analysis, there would be less burden on the plaintiff to prove the media defendant’s subjective intent for actual malice.  This would act as a small change that would create a more reasonable avenue for preserving quality in news media alongside the reputation interests of individuals without stripping the media of freedom of speech in its publications.  Regardless, one thing is certain: standards must change.


[i] 489 F. Supp. 3d 174 (S.D.N.Y. 2020).

[ii] Id. at 177.

[iii] Id.

[iv] Id. at 179 (emphasis added); see also Tucker Carlson Tonight (Fox News television broadcast December 10, 2019), https://www.dailymotion.com/video/x6yrdqe.

[v] McDougal, 489 F. Supp. 3d at 180-81.

[vi] Id. at 182-84,185-89.

[vii] Russell L. Weaver et al., Mastering Tort Law 270 (2d ed. 2016).

[viii] See Restatement (Second) of Torts § 559: Defamatory Communication Defined (Am. L. Inst. 1977); Weaver, supra note 7.

[ix] Weaver, supra note 7, at 271.

[x] Id., there are three other types of statements a defendant could make that would give rise to a slander per se action, including stating the plaintiff “suffered from a loathsome or venereal disease, engaged in conduct incompatible with his or her profession, or (in the case of women) had been unchaste.”

[xi] Restatement (Second) of Torts § 558: elements stated (Am. L. Inst. 1977); Restatement (Second) of Torts § 581A: True Statements, cmt. b (Am. L. Inst. 1977).

[xii] 376 U.S. 254 (1964).

[xiii] Id. at 279-80.

[xiv] Id.

[xv] See id. at 281-82.

[xvi] St. Amant v. Thompson, 390 U.S. 727, 731 (1968).

[xvii] David G. Savage, Scalia criticizes historic Supreme Court ruling on freedom of the press, Los Angeles Times (Apr. 18, 2014, 12:00 AM), https://www.latimes.com/nation/la-xpm-2014-apr-18-la-na-nn-scalia-ginsburg-supreme-court-libel-20140418-story.html.

[xviii] 388 U.S. 130, 155 (1967).

[xix] 418 U.S. 323, 346 (1974) (Burger, J., Douglas, J., & Brennan, J., dissenting).

[xx] Id. at 345-46.

[xxi] McDougal v. Fox News Network, LLC, 489 F. Supp. 3d 174,179 (S.D.N.Y. 2020).

[xxii] See Weaver, supra note 7, at 271.

[xxiii] See Restatement (Second) of Torts § 558: elements stated (Am. L. Inst. 1977); Restatement (Second) of Torts § 581A: True Statements, cmt. b (Am. L. Inst. 1977).

[xxiv] Many Americans Believe Fake News Is Sowing Confusion, https://www.pewresearch.org/journalism/2016/12/15/many-americans-believe-fake-news-is-sowing-confusion/ (Dec. 15, 2016); Many Americans Say Made-Up News Is a Critical Problem That Needs To Be Fixed, https://www.pewresearch.org/journalism/2019/06/05/many-americans-say-made-up-news-is-a-critical-problem-that-needs-to-be-fixed/ (June 5, 2019).

[xxv] 5 Facts about Fox News, https://www.pewresearch.org/fact-tank/2020/04/08/five-facts-about-fox-news/ (Apr. 8, 2020).

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s