Defamation Law and the Crumbling Legitimacy of the Fourth Estate

Historically, local newsgatherers played a key democracy-enhancing role by keeping their communities informed about local events and holding local elected officials to account. As the market for local news has evaporated, more and more cities have become “news deserts.” Meanwhile, fewer national legacy news providers can afford to invest in the processes and expertise needed to produce high-quality news about our increasingly complex world. The true crisis of press legitimacy is the declining cultural investment in the systematic gathering of high-quality news produced by independent, transparent, and trustworthy sources.Although scholars usually point to a handful of cultural and economic factors as undermining news quality and press credibility, various critics now identify a more covert culprit: the US Supreme Court. The Court is partly to blame for the press’s declining credibility, these critics claim, because the Court’s First Amendment decisions hinder the ability of state defamation law to hold the press accountable for defamatory falsehoods. The implication is that the press would regain much of its credibility if the Court would remove these constitutional barriers – especially the requirement that public officials and public figures demonstrate “actual malice” on the part of the press for a defamation claim to prevail. Nonetheless, as this chapter explains, the current landscape of high-profile defamation cases, and the public reaction to them, casts doubt on whether things could be so easy.