Libel law and defamation headline Latham & Watkins Forum
At a moment when political actors increasingly turn to the courts as a venue to challenge critical speech, a panel of leading media lawyers and scholars convened at an NYU Law Forum, sponsored by Latham & Watkins, to assess whether US defamation law is keeping pace.
The November 5 event, titled “Defamation Lawfare: Reputation, Retribution, and Press Freedom,” featured Megan Meier, a partner at plaintiff-side firm Meier Watkins Phillips & Pusch; Elissa Cohen, vice president and assistant general counsel at Vox Media; Burt Neuborne, Norman Dorsen Professor of Civil Liberties Emeritus; and David McCraw, senior vice president and deputy general counsel at the New York Times Company. Jud Campbell of Stanford Law School, a visiting professor at NYU Law, moderated the discussion.
McCraw opened by addressing what he called a widespread misperception: that American newsrooms are drowning in defamation suits. “We may get four defamation cases a year, sometimes two,” he said of his own experience at the Times. “We just haven’t seen that sort of use of defamation to be used against news organizations that we see in other countries.”
Yet Neuborne argued that, across the industry, something has changed. “I don’t think it’s a coincidence that significant libel and defamation cases have been filed against ABC, CBS, the New York Times, and the Wall Street Journal all in a relatively short period of time,” he said, referring to claims brought by President Donald Trump against a range of media outlets. Neuborne tied that trend to what he called the broader “politicization of the courts,” and raised concerns about what he called “collusive settlements” in high-profile media cases that may function as “disguised bribes” to serve unrelated corporate or political goals.
He pointed to settlements with Trump involving CBS’s parent, Paramount, and ABC, which is owned by Disney, suggesting the payments were at least as much about smoothing antitrust approvals or mending relations with political leaders as resolving the underlying speech disputes.
Both Cohen of Vox Media and McCraw of the Times described their work as defined less by courtroom battles than by pre-publication troubleshooting and a rising tide of threats.
Cohen said the formal legal standards around defamation have been stable for years, but “there’s a shift in perception and pressure exerted on journalists” driven by political attacks, “fake news” rhetoric, and a steady stream of demand letters. McCraw noted that while Times v. Sullivan—the landmark 1964 decision in which the Supreme Court ruled that public officials needed to prove “actual malice” to win defamation claims—and related First Amendment rulings make it hard to win libel suits in the US, would-be plaintiffs increasingly look for other causes of action, from tortious interference to consumer fraud claims aimed at news coverage.
For smaller outlets, Cohen stressed, even pre-litigation skirmishing can be chilling. Deep investigative work is “extraordinarily time-consuming and difficult,” she said, and sustained letter-writing campaigns and threats can quietly deter ambitious reporting, especially at local or under-resourced organizations.
Watch the video of the event:
At the Forum, Meier described her role as “pre-publication navigator” for clients who find themselves targeted by critical coverage. Because of the Sullivan framework, she tells clients that bringing a US defamation case is “a last resort.” Plaintiffs must not only prove falsity, but in most high-profile matters show the journalist knew or recklessly disregarded that falsity—the “actual malice” standard. By global standards, she emphasized, that makes the United States at “the far end of the protection of the free press and free speech.”
Neuborne traced Sullivan’s origins to the civil rights era. Southern officials, he explained, were using local libel laws and sympathetic juries to extract ruinous verdicts from national media, hoping to choke off coverage of segregation and protest. “Keeping national press coverage alive was one of the crucial strategies of the movement,” he said. “Times v. Sullivan was an effort to insulate the Times and the other national press from this kind of hostile takeover. For its time, it was a brilliant tactical success.”
A more complex question has emerged in the years since, he added: should a liability framework designed for a handful of institutional publishers still govern a fragmented digital ecosystem in which “everyone is the media”? McCraw suggested the answer may be no, at least at the margins. The subjective Sullivan standard—did a speaker know something was false, or entertain serious doubts?—makes sense for institutional press operating with editorial norms, he argued, but leads to anomalies online.
McCraw cited a case in which the rock singer Courtney Love defeated a Twitter defamation suit by testifying she genuinely believed an accusation that she tweeted about a lawyer taking a bribe, although she had done no research. “We have to ask some questions about does [Sullivan] work when we’re living in a world of X,” he said.
For this reason, McCraw floated a provocative idea: treating the First Amendment’s speech clause and press clause differently, giving institutional news organizations heightened protection while applying a modified standard to individuals posting online. Neuborne offered another possibility: an English law–inspired “court of honor” that would narrowly focus on resolving disputes and rebuilding credibility in libel and defamation cases. “Money does not necessarily restore your reputation,” he said.
The panel also explored two other factors complicating today’s speech environment: state anti-SLAPP statutes and federal platform immunity under Section 230 of the Communications Decency Act. Laws against so-called SLAPP suits—Strategic Lawsuit Against Public Participation—are now on the books in 37 states, allowing defendants to seek early dismissal and attorneys’ fees when they are targeted by lawsuits aimed primarily at silencing speech on public issues.
Meier said that in practice, anti-SLAPP laws mainly add “delay and marginal risk” for serious plaintiffs, while effectively pricing ordinary individuals out of litigation. “It essentially means that the ability to bring a lawsuit when you’ve been falsely represented is a luxury of the very wealthy and of companies,” she said.
On Section 230, Neuborne argued, the time has come for a fundamental rethink. The 1990s-era law shields internet platforms from liability for most third-party content, on the theory that they are more like telephone companies than publishers. That immunity, Neuborne said, may have been necessary to get the nascent internet off the ground, but now functions as a massive “insulation from any responsibility” for what are now profitable, highly sophisticated companies.
However, McCraw cautioned that simply repealing 230 could perversely discourage moderation. Without 230, he warned, some platforms might choose to “not moderate, not take things down, not make any editorial decisions” to avoid liability.
If there was consensus on any point, it was that the next generation of lawyers will contend with a defamation landscape very different from the one the Supreme Court confronted in 1964—but one where the core tension between reputation and robust public debate remains essentially unchanged. “The more things change,” Cohen said, “the more they stay the same.”
