When reporters can rely on the First Amendment, and when they can't

The First Amendment stands as the cornerstone of press freedom, protecting journalists and news organizations from government interference and censorship. Courts have long struggled to balance the press’s essential role in democratic accountability against the potential harm caused by reckless or malicious reporting.

Today, as journalists face “weaponized” defamation suits designed to silence them, the question becomes even more urgent: when should the First Amendment serve as a shield, and when should it not?

Protecting the Public’s Right to Know

In New York Times v. Sullivan, the Supreme Court recognized that public debate “may well include vehement, caustic, and sometimes unpleasantly sharp attacks.” The ruling established the “actual malice” standard for defamation claims involving public officials. The plaintiff must prove that a journalist/publisher knowingly ran false information or acted with a reckless disregard for the truth. 

This standard protected investigative reporting that exposes government misconduct against the chilling effect of mere threats of costly litigation. 

Similarly, New York Times Co. v. United States (1971), the Pentagon Papers case, reaffirmed that prior restraint faces a “heavy burden” of justification. The Court held that national security concerns could not override the press’s duty to inform the public absent a clear, immediate threat. This principle should continue to shield reporters who publish materials of public significance, even when those disclosures embarrass or inconvenience the powerful.

Irresponsible journalism

Yet, the First Amendment should not serve as an all-purpose defense for harmful or negligent journalism. As Gertz v. Robert Welch, Inc. made clear, private citizens deserve stronger protection from defamation than public figures do, since ordinary citizens have less access to public platforms for rebuttal and suffer more acutely from reputational harm. Justice Powell’s majority opinion rejected the Sullivan standard for private individuals, allowing states to impose liability for negligent reporting, though not strict liability.

As David Anderson argues in Rethinking Defamation, defamation law serves not only to compensate for economic loss but also to “vindicate the honor of the person defamed” and uphold societal civility norms. The First Amendment’s purpose is to foster truth-seeking and democratic dialogue, not to protect media outlets that carelessly damage sources or knowingly fabricate stories. 

The chilling effect of weaponized lawsuits

Recent defamation lawsuits have turned away from seeking redress and instead have been used as a tool to intimidate and bankrupt journalists. Lili Levi describes this phenomenon in The Weaponized Lawsuit Against the Media as “censorship-by-litigation,” where wealthy individuals fund lawsuits to punish disfavored outlets.

The most infamous example is Gawker Media, LLC v. Bollea, secretly financed by billionaire Peter Thiel. Gawker was bankrupt after a $140 million verdict, and its closure sent a chilling message to the press: one powerful adversary’s resentment can destroy an entire newsroom.

Levi warns that third-party funding can “distort the litigation process and threaten chilling effects for an already weakened and financially unstable press.” In this environment, even truthful or public-interest reporting can be chilled by fear of ruinous lawsuits.

Anti-SLAPP laws

Anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes allow journalists and media organizations to quickly dismiss baseless lawsuits intended to silence speech. While protections vary by state, these laws are essential to preserving investigative journalism. As the Reporters Committee for Freedom of the Press notes, anti-SLAPP statutes safeguard the “exercise of free speech and participation in public affairs” against intimidation.

Levi proposes additional measures, such as requiring courts to disclose third-party funders, waiving outrageous appeal bonds, and allowing “litigation-misuse” counterclaims when lawsuits are designed to silence media outlets. 

The First Amendment should serve as a shield for the press when its reporting advances public understanding and accountability, but not when it spreads falsehoods with disregard for truth.

As Grosjean v. American Press Co. (1936) established, the government cannot tax or suppress the press to stifle criticism. Yet as Gertz emphasized, the press must also bear responsibility when it inflicts unwarranted harm on private individuals.

The challenge for modern courts and lawmakers is to preserve a space where truth-seeking journalism can thrive without fear, while ensuring that legitimate claims of defamation receive a fair hearing.