This week, the U.S. Supreme Court denied a petition by Philadelphia Police Inspector D.F. Pace to take up his defamation lawsuit against Injustice Watch. At first blush, this is not surprising. Pace’s complaint, alleging defamation and false light because his comment on another officer’s Facebook post was included in the Plain View Project, was quickly dismissed by the district court. The U.S. Court of Appeals for the 3rd Circuit affirmed the ruling on appeal.
For Injustice Watch, the denial of Pace’s petition confirms that we acted properly in publishing the Plain View Project. The implications for journalism are far greater.
In his petition, Pace asked the court to reconsider the “actual malice” standard for libel lawsuits that it articulated in the 1964 case New York Times Co. v. Sullivan. The actual malice standard requires a public official to show that a media organization acted “with knowledge that [a published statement] was false or with reckless disregard of whether it was false or not” to successfully prove a defamation suit.
Pace argued that the actual malice standard places too high a burden on public officials and “essentially immunizes the dissemination of false facts.” In an era of Twitter and internet trolls and “fake news” that was “never imagined by our founders,” Pace argued, the actual malice standard is “no longer a democracy-enhancing doctrine.” In July, two Supreme Court justices articulated the same view.
The term “actual malice” is common parlance in media circles today. But the basis for the standard is less well known. In the Sullivan decision, the statements at issue were in a full-page advertisement in support of the civil rights movement. The unanimous court recalled that the First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” In light of our country’s fundamental dedication to freedom of speech, the court considered Sullivan “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
The Plain View Project and Injustice Watch’s related series, In Plain View, reflect that same commitment. The project, a database of Facebook posts by police officers from eight departments across the country that could undermine public trust in policing, has garnered national attention and multiple awards. It resulted in internal investigations in all the police departments involved, as well as a congressional investigation and a day of hearings in the Philadelphia City Council. The topic of the Plain View Project — troubling social media posts by police officers — reflects ongoing conversations around race that, like the civil rights protests at issue in Sullivan, are matters of the highest public interest and concern.
To be sure, the internet could not have been anticipated by the founders. But their reasons for imbuing the press with the constitutionally protected freedom to report on matters of public concern are no less relevant today. Indeed, the abundance of misinformation on the internet makes quality, fact-based journalism even more important. In the absence of the actual malice standard, defamation suits would be brought, and won, more frequently. The threat of a financially burdensome money judgment will deter the press from doing the hard work of informing the public about matters of critical importance.
It is no coincidence that this year’s Nobel Peace Prize was awarded to journalists in the Philippines and Russia “for their efforts to safeguard freedom of expression, which is a precondition for democracy and lasting peace … representatives of all journalists who stand up for this ideal in a world in which democracy and freedom of the press face increasingly adverse conditions.” The ability to access information and report fact-based news in the public interest must be protected, not threatened, by the rule of law.
The work of Injustice Watch is investigative journalism in the public interest, epitomized by work such as the Plain View Project. Sullivan makes that work — and the journalism that informs and engages a democratic society — possible.
Juliet Sorensen is the executive director of Injustice Watch.