Two Supreme Court justices have called for the court to revisit its landmark defamation ruling in New York Times v. Sullivan (1964), and a Christian ministry's defamation lawsuit against the Southern Poverty Law Center (SPLC) may provide the vehicle for a return to the Founders' vision of defamation law.
"This case is a perfect case to overturn the Times v. Sullivan standard," David Gibbs III, counsel for D. James Kennedy Ministries (DJKM), told Fox News. On Friday, Gibbs confirmed to Fox News that DJKM will file an appeal to the U.S. Supreme Court after the U.S. Court of Appeals for the Eleventh Circuit dismissed the case. The DJKM board of directors "unanimously approved" the decision to appeal.
Critics say the SPLC brands mainstream conservative and Christian organizations "hate groups," placing them on a list with truly hateful organizations like the Ku Klux Klan. The SPLC has branded DJKM an "anti-LGBT hate group" due to its Bible-based statements on homosexuality, and Amazon uses the SPLC "hate group" list to determine eligibility for its Amazon Smile charity program. In 2017, DJKM sued the SPLC and Amazon for defamation and discrimination.
Courts have tossed DJKM's lawsuit, however, ruling that the ministry has not met the "actual malice" standard for defamation that the Supreme Court invented in New York Times v. Sullivan. Supreme Court Justices Clarence Thomas and Neil Gorsuch have called for the court to revisit that precedent and the "actual malice" standard, specifically.
Under the court's precedents, Thomas explained in a dissent last month, "public figures cannot establish libel without proving by clear and convincing evidence that the defendant acted with ‘actual malice’—that is with knowledge that the published material ‘was false or with reckless disregard of whether it was false.’"
Thomas argued that the actual-malice standard bears "no relation to the text, history, or structure of the Constitution." He cited examples of lies about public figures that have caused real harm. "The proliferation of falsehoods is, and always has been, a serious matter. Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires."
Gorsuch noted that, from the nation's founding onward, defamation law was "almost exclusively the business of state courts and legislatures." In New York Times v. Sullivan and other cases, the court set up a federal standard on defamation that raised the bar far above the historic requirements of common law and expanded the category of "public figure" from government officials to people who have achieved "pervasive fame or notoreity."
"The SPLC’s ‘hate group’ accusation is a financial and reputational death sentence, effectively equating organizations to the KKK."
"Now, private citizens can become ‘public figures’ on social media overnight," Gorsuch noted. He explained that the media ecosystem has fundamentally transformed since 1964: newspapers have failed, network news has lost most of its viewers, and 24-hour cable news and online media platforms that "monetize anything that garners clicks" have grown up in their places. In this environment, the actual-malice standard makes less sense, he argued.
Gibbs, the DJKM lawyer, told Fox News that his "case is the perfect case to overturn the actual-malice standard because you have a non-profit organization that is religiously doing their mission, they have done it consistently, they are being defamed in a most awful way. When you are an organization based on truth and love but you are called a hate group, that is per se defamation under Alabama law."
Gibbs noted that the SPLC "is sitting on half a billion dollars" in its endowment. "When you have a small Christian ministry that is living offering to offering, getting bullied and subjected to these defamatory statements, I do believe that this case has some sympathy."
Critics and former staffers have claimed that the SPLC uses the "hate group" label to target political opponents and to exaggerate hate in a fundraising scheme. A former SPLC spokesman even said, "our aim in life is to destroy these groups." A terrorist targeted the Family Research Council (FRC) in Washington, D.C., aiming to kill everyone in the building, using the SPLC's "hate group" map. The SPLC condemned the attack, but kept FRC on the map.
While courts have ruled against DJKM, one recent defamation lawsuit against the SPLC succeeded. The SPLC accused Maajid Nawaz, an anti-terror Muslim reformer, of being an "anti-Muslim extremist." Nawaz sued and the SPLC settled, offering a very public apology and paying $3.375 million to his nonprofit.
Megan Meier, a partner at Clare Locke, the law firm that represented Nawaz, told PJ Media that "the SPLC’s ‘hate group’ accusation is a financial and reputational death sentence, effectively equating organizations to the KKK. No right-thinking person wants to be associated with the KKK, so the SPLC’s ‘hate group’ accusation is incredibly effective at shaming organizations and causing them to be shunned by donors, fundraising platforms, service providers, the media, and others. Shaming and shunning are hallmarks of what makes a statement ‘defamatory’ under the common law."
If the Supreme Court takes up the case and rules in favor of DJKM, that might not settle the specific issue at hand. "With New York Times v. Sullivan out of the picture, there would be a new legal standard," Gibbs explained. "Then an Alabama decision-maker, in this case likely a jury, would make the determination."
Overturning Sullivan would involve opening up defamation law for the states to determine.
Even making it to the Supreme Court represents a major hurdle. The court receives approximately 10,000 petitions requesting a writ of certiorari every year, but only approximately 100 of them actually receive the writ and have oral arguments before the court.
While Thomas and Gorsuch have signaled their intent to take up a defamation case, the pertinent question for DJKM is whether or not two more of the justices would be willing to take up its case – it takes four justices to grant certiorari.
Gibbs told Fox News that DJKM would "certainly encourage organizations that are interested, law firms that are interested in altering the actual-malice standard to definitely consider whether they’d be willing to weigh in." He suggested that "other organizations that have been slandered by the SPLC" may file amicus briefs in the case.
The Southern Poverty Law Center did not respond to Fox News' request for comment.