Libel law is having a moment

Joe Arpaio, the firebrand former Arizona sheriff, announced last week he is suing The New York Times for $147.5 million. But what are his chances of prevailing?

He claims that the paper and editorial writer Michelle Cottle libeled him and cast him in a false light. At issue is the August 29 opinion piece “Well, at Least Sheriff Joe Isn’t Going to Congress,” in which Cottle landed one haymaker after the other, writing:

  • Arpaio was a disgrace to law enforcement, a sadist masquerading as a public servant. In a just system, we would not see his like again.
  • He oversaw a jail where mistreatment of inmates was the stuff of legend. Abuses ranged from the humiliating to the lethal. … Inmates were beaten, fed rancid food, denied medical care (this included pregnant women) and, in at least one case, left battered on the floor to die.
  • The number of inmates who hanged themselves in his facilities was far higher than in jails elsewhere in the country. More disturbing still, nearly half of all inmate deaths on his watch were never explained.
  • From 2005 through 2007, the sheriff and his deputies failed to properly investigate, or in some cases to investigate at all, more than 400 sex-crime cases, including those involving the rape of young children.
  • It was no secret that Mr. Arpaio’s methods often crossed the line into the not-so-legal.

Arpaio served as sheriff of Maricopa County for nearly 25 years. He was convicted in 2017 of criminal contempt of court for defying a federal judge’s order to stop detaining people solely on the basis of immigration status. President Trump later pardoned Arpaio, who went on to run unsuccessfully for the senate in Arizona.

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Arpaio’s complaint, which says he plans to run again for senate in 2020, for the late John McCain’s seat, alleges that Cottle’s piece contained false and misleading statements of fact that were “carefully and maliciously calculated” to harm Arpaio. Supposedly, the harm was done to his reputation in the law enforcement community and among Republican donors—with the effect of harming him financially, too, by making it hard for him to obtain funding for his next senate run.

Setting aside the comedy of someone other than Joe Arpaio harming Joe Arpaio’s reputation, it’s overwhelmingly likely that the complaint will not produce a win on the merits for Arpaio. As a public figure, he would have to prove that Cottle and the Times made false statements knowing they were false, or made them in reckless disregard of their truth or falsity. That’s extremely difficult.

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Moreover, the First Amendment provides broad protection to opinion, and it seems that to a significant extent the facts underlying Cottle’s opinions could be substantiated by reference to government records and proceedings. And then, finally, there’s the fact that the last time the Times lost a libel suit in the US was in the early 1960s.

Arpaio’s is the latest in a long line of libel suits filed or resolved in the past year or so. A British cave diver who helped the Thai soccer team trapped in a cave last summer is suing Elon Musk for calling him a pedophile and a child sex-trafficker, among other things. Former Trump fixer Michael Cohen dropped his libel suits against BuzzFeed and Fusion GPS over publication of the dossier detailing alleged ties between Trump and Russia. A judge dismissed Stormy Daniels’s libel suit against Trump. Tucker Carlson settled a claim filed against him by a former reporter for The Daily Caller. Sarah Palin is trying to revive her suit against the Times for its editorial saying that Palin’s rhetoric had a “clear” and “direct” connection to a mass shooting. And the frightful Roy Moore has been suing everyone: a Democratic-aligned super PAC that ran ads against him, the actor-comedian Sacha Baron Cohen for portraying Moore as a sex offender in a Showtime series, and several of the women who accused him of sexual predation.

The list goes on.

Trump also renewed his (empty) pledge in January to make it easier for people to sue news organizations for libel. And after Bob Woodward’s book Fear came out in September, Trump said Congress should change libel law so he could go after the famous investigative journalist, tweeting, “Isn’t it a shame that someone can write an article or book, totally make up stories and form a picture of a person that is literally the exact opposite of the fact, and get away with it without retribution or cost. Don’t know why Washington politicians don’t change libel laws?”

Trump has an impressive record of threatening to sue journalists and publishers and, happily, of not following through. Since the announcement of his candidacy, for example, Trump has threatened The Daily Beast for reporting related to his divorce, The Washington Post for reporting related to his Taj Mahal casino, the Associated Press for reporting related to the Trump Ocean Club, and the Times for publishing some of his tax records. He has not sued any of them.  

Fortunately libel law, overall, is in good shape—and is protective of speech, particularly on matters of public concern. That’s why, for various reasons, most of the ongoing suits noted above (those of Arpaio, Palin, and Moore) are likely to fail on the merits. What is cause for concern, though, are the baseless threats and the filing of so many high-profile flimsy suits.

They can chill speech on public issues.

Libel suits are costly to defend, even if the news organization ultimately wins, and at the state and local levels legal resources are especially strained. A Knight study released in 2016 reported that 65 percent of US newspaper editors said the press is weaker than it was 10 years ago, and 53 percent agreed that “news organizations are no longer prepared to go to court to preserve First Amendment freedoms.”

That’s hardly “an occasion for dancing in the streets,” as the philosopher Alexander Meiklejohn said after the Supreme Court handed down the landmark libel case New York Times v. Sullivan, but at least the state of the law, in this area, is strong. Indeed, we still produce news “against the background,” as Justice William Brennan wrote in Sullivan, “of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

ICYMI: Fox News contacted a man on Twitter for permission to use a video he posted. It didn’t go well. 

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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.