Constitutional Law

Falsehoods In The Media Deserve Criticism, But Also First Amendment Protection

The best response to speech we don’t like is more speech, not threats of lawsuits which are often only available to the wealthiest among us to threaten others into silence.

By  
on

As a University of Arizona basketball fan, I have more reason than most to despise ESPN and its reporter Mark Schlabach, but I am also grateful to live in a country where suing either for libel or defamation is virtually impossible.

Defamation lawsuits, or merely the threat of defamation lawsuits, seem to be all the rage these days and that’s troubling for anyone like me who wants to keep robust First Amendment protection where it currently exists. From members of Congress who bring $250 million dollar lawsuits against organizations such as Twitter because some of its users insult them, to the President of the United States wanting to open up libel laws because a renowned journalist publishes an unflattering account in a book, to a justice on the Supreme Court calling for landmark libel rulings to be reconsidered, there is simply a lot out there that’s concerning. The current state of First Amendment law however, should still provide a lot of comfort.

As a general matter, states can still vary in their defamation statutes with state-specific elements. Since 1964, however, and the United States Supreme Court case New York Times v. Sullivan, all state defamation laws have been subject to a degree of First Amendment scrutiny. This First Amendment scrutiny requires every state defamation statute to limit its scope to false statements of fact only, while insults, hyperbole, or characterizations must remain protected. Moreover, when the defamation claim is brought by a public figure, say, for example, the head coach of the University of Arizona’s men’s basketball team, the plaintiff must prove an additional element of actual malice by the defendant.

Actual malice means the defendant either knew, before they published a false statement of fact, that the statement was false, or deliberately ignored “manifest signs that the statement was false.” For the purposes of this piece, it is only important to make clear that, under this NYT v. Sullivan standard, even if a publication issues a false statement of fact, a public figure still has to prove actual malice and this is an extraordinarily difficult burden to satisfy in most cases. Now let’s apply the defamation standard to a public figure like head coach Sean Miller, and an inaccurate ESPN report that falsely claimed to know of evidence of Sean Miller’s guilt for possibly serious felonies.

The ESPN report claimed Sean Miller was overheard on FBI wiretaps talking to a sports agent about a $100,000 bribe to retain the services of last year’s first overall NBA draft pick Deandre Ayton. From the beginning, and often utilizing what could only be described as basic logic, several other sports media organizations began to publish stories of their own that casted serious doubt about the accurateness of ESPN’s report. For one thing, as Sport’s Illustrated’s Michael McCann pointed out, the timeline that was detailed in ESPN’s report made no sense as “relevant FBI wiretaps in the investigation did not begin until 2017 — months after five-star recruit Deandre Ayton had already committed to Arizona in Sept. 2016.” In other words, it would be completely illogical for Sean Miller to be on tape discussing a $100,000 payment to secure the services of a player who, at that point, had already signed a legally binding contract to attend Arizona.

In response to criticism of the accuracy of the report, ESPN and author Mark Schlabach at first doubled-down. When criticism kept mounting, ESPN would eventually issue a retraction, only to then retract the retraction and then inexplicably stand behind its original timeline of events that possessed embarrassingly obvious holes. Fast-forward to last week, to a series of federal college basketball corruption trials which appeared to settle the issue once and for all as to whether ESPN’s claim about Miller was true. According to Michael McCann who covered the trials for Sports Illustrated, “no such recording” of Sean Miller “has been played in either trial nor referenced in any government pleading” and if one did exist, it in all likelihood it “would have surfaced by now.” To put it more bluntly, there was no tape of Sean Miller and ESPN’s report has now been credibly exposed as being a false statement of fact.

The damage done to Arizona by ESPN’s false statement is substantial. Prior to the ESPN report, Arizona had a top 10 incoming recruiting class that included Shaq’s son Shareef O’Neal. After Sean Miller was falsely implicated by ESPN, however, every recruit decommitted with only one, Brandon Williams, coming back to sign with Arizona later. Having their recruiting class decimated resulted in a very down year for Arizona men’s basketball (the blow was severely blunted by the success of the women’s program), with the school missing the NCAA tournament entirely.

Sponsored

As a fan of the University of Arizona basketball programs, and as an alum of the law school, I cannot really put into words my hatred for ESPN and Mark Schlabach. The most egregious wrong in all this that I saw was that Deandre Ayton, a then-teenager of exceptional talent, was forced to endure months of intense media coverage that falsely portrayed him as having participated in the commitment of possibly serious felonies. Nevertheless, in my humble opinion, nothing ESPN has done would, or should, sustain a defamation claim by Sean Miller for a couple of reasons.

First, as a public figure, Sean Miller must prove actual malice by either ESPN or Mark Schlabach and as I tried to illustrate above, this is often an incredibly difficult burden. Moreover, during one of the corruption trials, a former Arizona assistant coach did in fact implicate Sean Miller. Although reporters such as Michael McCann have cast considerable doubt as to “the accuracy and believability of the allegation against Miller,” one can see that perhaps ESPN simply made an error about who was on the tape. Of course, we won’t understand why ESPN was wrong until they first admit that they were in fact wrong, which brings me to my second point.

As the Supreme Court said in New York Times v. Sullivan, an “erroneous statement is inevitable in free debate” and accordingly, inevitable errors must be protected if the freedom of expression is to have the kind of “breathing space” it needs to survive. I agree wholeheartedly with this analysis, and it is of great importance to note that the truth about Sean Miller was not discovered by a defamation lawsuit, but by better reporting. In other words, the best response to speech we don’t like is more speech, not threats of lawsuits which are often only available to the wealthiest among us to threaten others into silence. In sum, I have more reason than most to dislike ESPN and its reporter Mark Schlabach, but I am also grateful to live in a country where suing either for libel or defamation is virtually impossible in this case. Oh, and Bear Down Arizona!

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

Sponsored

Topics

, , , , , ,