How Two Rights Made a Wrong—Sullivan, Anti-SLAPP, and the Under-Enforcement of Public Figure Defamation Torts

15 Pages Posted: 22 Mar 2021 Last revised: 23 Mar 2021

See all articles by Justin W. Aimonetti

Justin W. Aimonetti

University of Virginia School of Law

Christian Talley

University of Virginia School of Law

Date Written: October 25, 2020

Abstract

Two wrongs don’t make a right, but can two rights make a wrong? With public-figure defamation actions, the answer is sometimes “yes.” To protect the right to freedom of speech, the Supreme Court held in New York Times v. Sullivan that public officials who sue for defamation must prove that defendants acted with “actual malice.” On its own, the Sullivan standard is almost impossible to satisfy. But in many states, the true standard for public-figure defamation suits has become even tougher. Seeking to protect the right to petition, many state legislatures have enacted statutes targeting so-called “strategic lawsuits against public participation” (SLAPP)—suits filed in retaliation for the exercise of First Amendment rights. These statutes permit defendants who claim they were sued for their First Amendment activities to make “anti-SLAPP” motions early in the litigation. To prevent dismissal of their claims, plaintiffs then must show—before discovery—a probability of success on the merits. Whatever these statutes’ utility in ordinary litigation, they saddle public-figure defamation plaintiffs with an almost-comical catch-22: to survive an anti-SLAPP motion and obtain discovery, plaintiffs must demonstrate that defendants likely acted with actual malice. But because “actual malice” refers to the defendant’s mental state, it often requires discovery to prove. By trapping plaintiffs in this dilemma, anti-SLAPP double-counts defendants’ rights and creates an anti-plaintiff super-standard. This synergy of Sullivan and anti-SLAPP has led to an undesirable underenforcement of defamation law. Despite Sullivan and anti-SLAPP’s intended goals, their union immunizes defamatory speech unrelated to the search for “political truth” or the “marketplace of ideas.”

Suggested Citation

Aimonetti, Justin and Talley, Christian, How Two Rights Made a Wrong—Sullivan, Anti-SLAPP, and the Under-Enforcement of Public Figure Defamation Torts (October 25, 2020). 131 Yale L. J. Forum 708 (2021) (with Christian Talley) (winner of the Yale Law Journal Student Essay Competition)., Available at SSRN: https://ssrn.com/abstract=3718683

Justin Aimonetti (Contact Author)

University of Virginia School of Law ( email )

Christian Talley

University of Virginia School of Law ( email )

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