The laws of defamation and privacy are at once similar and dissimilar. Falsity is the hallmark of defamation – the sharing of untrue information that tends to harm the subject’s standing in their community. Truth is the hallmark of privacy – the disclosure of facts about an individual who would prefer those facts to be private. Publication of true information cannot be defamatory; spreading of false information cannot violate an individual’s privacy. Scholars of either field could surely add epicycles to that characterization – but it does useful work as a starting point of comparison.

Yet both defamation and privacy law look similar in relief. Purported information about an individual – be it true or not – is shared with others, and through that sharing the individual experiences (subjective or objective) harm. In both, the subject of speech by one party appeals to the courts for relief from perceived harm resulting from that speech.

Speech has greater potential to be perceived as harmful today than it did at any point during the twentieth century – the century during which the contours of both defamation and privacy law were principally defined. Today we live in an era of “cheap speech and big speech.” The cost of producing and publishing speech has never been lower and the scale of the audience for that speech has never been larger. At the individual level, idle speech about other people (e.g., gossip, rumors) has migrated from locker rooms and water coolers to X – words whose impact was historically limited in terms of private reach and duration have become public and persistent. At the public level, competition between media outlets – once limited to a few established media outlets but now including potentially anyone with an X account and an appeal to the political or prurient – creates a race to publish anything deemed newsworthy. And by virtue of coverage, the once minor, trivial, or private can be thrust into the public spotlight, at least for limited public purposes.

Contingent facts, those most likely to be made subject to public scrutiny through either process, are not likely to be clearly true or false. Rather, the process of their publication is more likely relevant to how we, as a society, ought to evaluate the propriety and harmfulness of their publication. The chapters that follow explore both defamation and privacy law in this new era of cheap speech and big speech.

Lyrissa Lidsky leads things off with Chapter 7, “Cheap Speech and the Gordian Knot of Defamation Reform.” In her contribution, Professor Lidsky traces the development of defamation law alongside technology from the Restatement (Second) of Torts in 1977. As she says, “A lot has changed since 1977.” Lidsky tells us that “Today’s conversation is animated by concerns about the effects of cheap speech on the information ecosystem, with the critics asking if the constitutional strands of current defamation law tilt the scales too sharply in favor of free expression.” In particular, Lidsky assesses criticisms that Justices Thomas and Gorsuch have leveled at the First Amendment law of defamation – and she expresses skepticism about the reforms these Justices seemingly propose. But she also expresses sympathy for the idea that reform is needed, calling for “new remedies to better vindicate reputation and set the record straight, construct new incentives for journalists of all stripes to adhere to professionally developed standards for getting the facts right, and establish new deterrents to libel bullying.” In focusing on the reputational aspect of the defamation harm, Lidsky implicitly calls attention to the relationship between defamation and privacy harms.

In Chapter 8, “Defamation, Disinformation, and the Press Function,” RonNell Anderson Jones takes a deeper look at Justice Gorsuch’s suggestion that the Supreme Court reconsider New York Times v. Sullivan, “the foundational First Amendment precedent in defamation law.” In so doing she sounds a cautionary note. In the era of cheap speech it is easy to find criticism of institutional media publishing what amounts to disinformation. But the reality, Jones tells us, is more complicated: The institutional media are not our primary disinformation generators and distributors. To the contrary, they work hard to get things right and compete in terms of their ability to do so. Jones argues that overruling Sullivan would threaten media institutions’ ability to perform this costly and important function.

The next two chapters turn from defamation to privacy. Privacy harms differ from defamation harms because they typically stem from accurate but intrusive communications rather than false ones. But the emergence of cheap, platform-driven online speech has amplified privacy and defamation harms in a parallel way.

In her contribution, Professor Amy Gajda looks at the publication and changing uses of police mug shots. Mug shots, she explains, were based on a policy that “the public should know who’d been arrested and on what grounds and how they looked at the time of arrest in order to ensure that police had not battered them.” Historically, the local press might publish those mug shots they considered newsworthy. Today, a global audience can pick up digitized mug shots from public records websites. Gajda tracks recent developments in both state law and journalistic practice that attempt to narrow these photographs’ public circulation. She suggests that the trend toward privacy is likely to continue, and that “one’s entire criminal past, including one’s older mugshot, could one day come to be even more strongly protected on privacy grounds.” Contextualizing this alongside the discussion of privacy, it is remarkable to observe heightened restrictions on the publication of speech that is both factual and based in government activity.

Where Gajda’s chapter focuses on facts and speech created by the state, Professor Thomas Kadri’s chapter considers privately compiled information, focusing on harms facilitated by data brokers. In the era of cheap speech, it is far easier to collect, process, and bundle information about people – and there is a surprisingly vibrant market for this information. Indeed, the data brokers who make up this market further lower the cost of obtaining information about individuals by scouring various sources – public and sometimes private – for published information. Kadri documents specific instances of harm that such availability of information can facilitate (including the murder of a stalking victim). His greater point, however, is the privacy harm that this inflicts generally by robbing us of the obscurity that we all implicitly and explicitly rely on in our day-to-day lives. The data broker business model is built on taking the possibility of obscurity – the general presumption that our day-to-day activities will be unobserved by others – away from us, at least without each of us undertaking concerted efforts to maintain it. As with the other chapters in this part, Kadri’s contribution raises difficult questions about what rights individuals have to control the ways that information about them is used by others.

7.1 Introduction

Dean John Wade, who replaced the great torts scholar William Prosser on the Restatement (Second) of Torts, put the finishing touches on the defamation sections in 1977.Footnote ¹ Apple Computer had been founded a year before, and Microsoft two, but relatively few people owned computers yet. The twenty-four-hour news cycle was not yet a thing, and most Americans still trusted the press.Footnote ²

A lot has changed since 1977. Billions of people now publish their most profound, trivial, or scurrilous thoughts – unexpurgated – to mass audiences. Trying to compete with “cheap speech” has economically devastated large swaths of the news industry, stripping talent and expertise from newsrooms. Meanwhile, and perhaps unsurprisingly, public trust in news media has eroded dramatically.Footnote ³ These developments pose the biggest challenge for defamation law since the invention of the printing press. Yet they have not inspired dramatic reform to the common law of defamation.Footnote ⁴ Or at least not yet. As the American Law Institute begins a new Restatement of Defamation Law, it is important to consider what a successful program of reform might look like.

In this chapter, I examine some of the most important “reforms” to defamation law since 1977 and speculate about why those reforms have been predominantly constitutional and statutory, with common-law developments playing a less important role. I then evaluate recent critiques of defamation law’s constitutional dimensions by two U.S. Supreme Court Justices, paying special attention to Justice Neil Gorsuch’s argument that changed circumstances related to cheap speech justify reconsidering and perhaps eliminating some First Amendment constraints on the common law of defamation. I tally defamation law’s scorecard in vindicating reputation and deterring disinformation, which leads me to concur with some of Justice Gorsuch’s critiques. I nonetheless question his prescription. Merely rolling back constitutional protections will not deliver the proper balance between protecting individual reputation and safeguarding the types of speech that contribute to informed democratic decision-making, because powerful people will increasingly use defamation law to punish their critics. To achieve a proper balance, a more comprehensive approach to reform is needed. I offer the outlines of such an approach for untangling (rather than cutting) the inseverable interweaving of tort, constitutional, and statutory law.

7.2 Defamation Law Reform: 1977–Present

In its long history, defamation has been a sin, a crime, and a tort. In the United States, it now exists as a complex body of doctrine comprised of common law, constitutional law, and statutory law. The most important changes to defamation law since 1977 were constitutional and statutory rather than common-law changes. In 1977, the U.S. Supreme Court was still in the process of “constitutionalizing” defamation law. That process began with the Court’s seminal decision in New York Times v. Sullivan in 1964.Footnote ⁵ There, for the first time, the Court interpreted the First and Fourteenth Amendments to set limits on state common law in defamation cases involving public officials; the Court held that these limits were necessary to prevent state tort law from chilling uninhibited, robust, and wide-open commentary about government officials acting in their official capacity. Famously, Sullivan held that these officials could not recover for defamation absent proof that the person who allegedly defamed them knowingly or recklessly disregarded the falsity of the defamatory statement. But Sullivan was just the beginning. The Court later interpreted the First and Fourteenth Amendments to limit the common law in ways that reshaped practically every element of the defamation tort, particularly in cases involving litigants who were public officials, public figures, or ordinary people involved in matters of public concern – that is to say, almost all cases! The effect of the Court’s defamation jurisprudence was to impose a labyrinthine set of constitutional doctrines on the tort of defamation. It also imposed on lower courts the burden of interpreting these doctrines in novel situations and deciding whether to do so narrowly or, as they did in the case of deciding which plaintiffs qualified as public figures, expansively. Nonetheless, the Supreme Court’s constitutional doctrines fundamentally recalibrated the balance between reputation and free expression in defamation law: The common law could provide more protection for free expression than these doctrines required, but it could not provide less.

The Supreme Court’s constitutional doctrines did not foreclose common-law creativity in adapting to changing circumstances, but in the decades following the Court’s last major defamation decision in the early 1990s, legislators – not courts – played the leading role in enacting pro-defendant reforms. In the 1980s and early 1990s, scholars called for defamation reform in order to respond to a “dramatic proliferation of highly publicized libel actions brought by well-known figures who seek, and often receive, staggering sums of money.”Footnote ⁶ These calls for comprehensive reform had little traction in state courts, but starting in the 1990s and continuing to the present, states passed legislation to respond to the perceived problem of powerful actors weaponizing libel actions against ordinary citizens. The original impetus for such laws was the work of Professors George Pring and Penelope Canan. Pring and Canan documented the rise of a type of suit they branded Strategic Lawsuits Against Public Participation, or SLAPPs; they used this term to describe frivolous defamation suits brought by powerful local actors such as real-estate developers to stifle the criticisms and civic participation of ordinary citizens in forums such as zoning board meetings.Footnote ⁷ Their influential work, which culminated in a 1996 book, detailed how such suits invade not just First Amendment rights to free expression but also the right of citizens to petition their governments for redress of grievances. Pring and Canan brought public attention to the weaponization of defamation law by the powerful against the relatively powerless, and their work inspired more than half of all state legislatures to pass laws establishing procedures to allow defendants to obtain early dismissals of meritless libel suits; the laws sometimes enabled defendants to collect attorneys’ fees as well.Footnote ⁸ Where such anti-SLAPP laws exist, and especially in jurisdictions adopting them in their stronger forms, they have dramatic effects on libel litigation – and not just on cases that fit Pring and Canan’s original paradigm.

As important as anti-SLAPP legislation is, the most dramatic defamation reform of the last forty or so years took place in 1996, with the passage of Section 230 of the Communications Decency Act. It is not a stretch to say that this statutory defamation reform helped propel the Cheap Speech Revolution. Section 230(c) immunized internet service providers and website operators from liability for defamatory communications posted by their users. Congress granted this immunity to the actors we would later come to call platforms and, more recently, Big Tech.Footnote ⁹ Congress’s legislative efforts stemmed from dissatisfaction with common law’s attempt to apply traditional defamation law principles to internet service providers. Prior to the passage of Section 230, two influential district-court decisions held that internet service providers who exercised editorial control by editing or taking down user-generated content would be liable for defamatory content posted by their users, just as newspapers are liable for defamatory content they publish in letters to the editor; internet service providers who eschewed editorial control, however, would be liable only upon receiving notice of users’ defamatory content and subsequently failing to remove it, just as – ostensiblyFootnote ¹⁰ – bookstores and other content “distributors” are.Footnote ¹¹ These decisions disincentivized internet service providers from taking down problematic content to avoid being treated like traditional media “publishers.”

Yet, instead of merely insulating internet service providers from liability akin to that of traditional publishers, the broad language of Section 230’s immunity insulated ISPs from distributor – or notice-and-takedown – liability as well, ostensibly to fuel the growth of the internet as an economic engine. Whether this was necessary is arguable, since most of the world imposes notice-and-takedown liability on Google, Facebook, and other Big Tech actors. Nonetheless, the effect of Section 230 has been to foreclose U.S. victims defamed online or in social media from accessing the deep pockets of Big Tech. Only the person posting the defamatory statement may be sued, regardless of whether that person can even be found or has resources to litigate or satisfy a defamation judgment. Section 230’s effect on the development of defamation law over the last quarter of a century cannot be overstated. Absent Section 230, suits against online intermediaries would be much more common than they are today, and common-law courts would certainly bear more responsibility for adapting defamation principles to Big Tech practices – shaping those practices in the process. If the Supreme Court narrows the scope of immunity under Section 230, we can once again expect a dramatic reshaping of Big Tech practices.

To say that constitutional and statutory developments were the biggest news of defamation law over the last forty-five years is not to say that the common law has not responded at all to some of the novel issues cheap speech poses. For example, courts have had to decide whether an internet post is slander or libel, whether a person who provides a hyperlink to an article has “published” it for defamation purposes, and what to do about defamation cases based on reviews or rankings determined by algorithms.Footnote ¹² New issues continue to arise, and as they do, courts tend to adapt common-law doctrines by analogizing new communications formats to old ones, though they sometimes resort to creatively using equitable doctrines, such as libel injunctions, to deter those who might not be deterred by orders to pay money damages.Footnote ¹³

Even so, common law’s creativity in responding to cheap speech has been stymied by its inherent incrementalism and respect for precedent: Even now, only a minority of states have eradicated the outmoded distinctions between libel and slander, which arose from a jurisdictional battle between ecclesiastical and seigneurial courts in England and which commentators have decried for hundreds of years.Footnote ¹⁴ But an even bigger obstacle to comprehensive common-law reform is the Supreme Court’s pervasive constitutionalization of the underlying tort. Having tilted the scales toward the First Amendment in most defamation cases, the Supreme Court left little leeway for states to add reputational protections for their citizens and, for much of this time, the substantive and procedural constitutional protections seemed more than sufficient to protect free expression, especially when coupled with statutes allowing for early dismissals of frivolous actions. The effect has been a sort of practical pre-emption of common law rebalancing reputation versus expression. Now, however, there is growing discontent with our information ecosystem: Is defamation-law reform the answer?

7.3 Defamation Law’s New Critics

Today’s public conversation about defamation-law reform is being galvanized by a spate of high-profile lawsuits and critiques of the law offered by a president and two Supreme Court Justices. Today’s conversation is animated by concerns about the effects of cheap speech on the information ecosystem, with the critics asking if the constitutional strands of current defamation law tilt the scales too sharply in favor of free expression.

The Media Law Resource Center’s data confirm the popular impression that more defamation lawsuits have been brought in the last few years than previously. Moreover, the ones that have been brought seem to be more visible. High-profile plaintiffs appear to have multiplied,Footnote ¹⁵ with household names such as Sarah Palin, Devin Nunes, Roy Moore, and Donald Trump all suing for defamation.Footnote ¹⁶ Other recent lawsuits are noteworthy because they involve high-profile defendants and important societal issues. Notable in this regard are:

• • the many lawsuits by women who were called liars after alleging sexual harassment by Donald Trump;

• • the lawsuits brought by parents accused of being “crisis actors” after their children were murdered at Sandy Hook, which have now resulted in judgments of more than a billion dollars against internet personality Alex Jones;

• • the lawsuits, now settled or dismissed, by a Kentucky teen whose perplexity was misreported by many media sources as racism based on a viral video that contained its own refutation;

• • the lawsuit, currently on appeal, brought and won by actor Johnny Depp against his former wife Amber Heard for accusing him of sexual violence, and her countersuit, also won in part and also on appeal, for his accusations that she fabricated evidence to further her defamatory accusations;

• • the lawsuits, now settled, by Georgia poll workers accused of tampering with the results of the 2020 presidential election; and

• • the lawsuits, ongoing, by the providers of electronic voting machines alleged by prominent Trump partisans and conservative news networks to have fraudulently delivered the 2020 election to President Biden.

Like high-profile defamation lawsuits of past eras, these involve high-profile political figures, celebrities, and reputable media. Unlike their high-profile predecessors, they also involve fringe media outlets, a president – as both defendant and plaintiff – and even individuals posting to social media through pseudonymous parody accounts, such as @DevinNunesCow.

More interesting than the number of recent libel lawsuits is the prominence of libel law’s recent critics. While running for president, Donald Trump promised to “open up” libel laws. Critics derided Trump’s promise, noting – correctly – that presidents control neither state common law nor the interpretation of the First Amendment.Footnote ¹⁷ Yet, though Trump’s promise to change libel law may not have amounted to much in the short term, Justices Clarence Thomas and Neil Gorsuch may have begun playing a long game to galvanize constitutional reform. Justice Thomas began calling for reconsideration of New York Times v. Sullivan in his concurrence in the Court’s denial of certiorari in McKee v. Cosby in 2019, which was a defamation case brought by a woman against the former actor Bill Cosby. Cosby had accused her of lying about him sexually assaulting her. Although Justice Thomas’s opinion in that case seemed quixotic at the time, he subsequently has asked the Supreme Court to consider rolling back or eliminating the constitutional protections grafted onto libel law in two more libel cases in which the Court denied certiorari. Justice Gorsuch has written separately in one of these cases, Berisha v. Lawson, to echo Thomas’s call for reconsideration – though on different grounds.Footnote ¹⁸ The latest of these cases was relisted repeatedly before the Court denied certiorari, and in light of the recent activism of the Supreme Court in overturning settled constitutional precedents, court prognosticators suspect the Court may take a case revisiting its defamation jurisprudence soon.

So far, Justice Clarence Thomas has grounded his critique of the Court’s defamation jurisprudence largely in originalism concerns, calling New York Times v. Sullivan and the subsequent Supreme Court cases extending it “policy-driven decisions masquerading as constitutional law” that lack any relation to the “text, history, or structure of the Constitution.”Footnote ¹⁹ Justice Thomas asserts that the Court should inquire “whether either the First or Fourteenth Amendment, as originally understood, encompasses an actual-malice standard for public figures or otherwise displaces vast swaths of state defamation law.”Footnote ²⁰ He indicates this inquiry would reveal that the Court’s defamation jurisprudence is supported by “little historical evidence” and should be overruled.Footnote ²¹ Scholar Matthew Schafer has already cast doubt on Thomas’s historical evidence concerning the original meaning of the First Amendment,Footnote ²² and the Justice’s reliance on scandalum magnatum, a disavowed action by which British monarchs and “great men of the realm” (i.e., members of the peerage) criminally punished their critics, is singularly unpersuasive and even embarrassing.Footnote ²³ Be that as it may, however, the originalist portion of Thomas’s argument, even if he were correct in his historical analysis, is likely to convince only those who believe that the First Amendment should protect no more speech today than it did in 1791 (or perhaps in 1868, when the Fourteenth Amendment was ratified).

Justice Thomas’s policy arguments are more persuasive. These focus on the “real-world” negative effects of the Court’s constitutionalization of defamation law.Footnote ²⁴ He asserts that the Court’s defamation jurisprudence has “allowed media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’”Footnote ²⁵ His boldest claim, however, is that the actual-malice standard fosters lies in public discourse by “insulat[ing] those who perpetrate [them] from traditional remedies like libel suits.”Footnote ²⁶ He cites examples of conspiracy theories, hoaxes, and campaigns of online character assassination as evidence for the proposition that “lies impose real harm.” Although he does not fully connect the premises of his argument to his conclusion, he seems to assert that the common law of libel, left to its own devices, could deter viral lies and other pernicious disinformation.Footnote ²⁷ Beyond that, he does not elaborate on how unshackling the common law from First Amendment constraints would deter the proliferation of lies, and he does not ground the need for this deterrent fully in “cheap speech” concerns.

Justice Gorsuch, on the other hand, spotlights changes in the communication environment since 1964 as a basis for the reconsideration of Sullivan, and he claims that these changes undermine the rationales of the Court’s actual-malice standard and public-figure doctrine. If Justice Gorsuch is correct in his criticisms, his call for reform should resonate even with those who have no truck with originalism. It is therefore useful to evaluate Gorsuch’s concerns and determine what types of reforms might ameliorate them.

In an opinion dissenting from the denial of certiorari in Berisha v. Lawson, Justice Gorsuch postulates that the Framers understood the importance of press freedom to the healthy functioning of democracy.Footnote ²⁸ Nonetheless, he writes, “like most rights, [freedom of the press] comes with corresponding duties.”Footnote ²⁹ One of those duties is the duty “to try to get the facts right – or, like anyone else, answer in tort for the injuries they cause.”Footnote ³⁰ The implicit message of his dissent is that the press once tried to get the facts right, but this may no longer be the case.

Although Justice Gorsuch criticizes Sullivan as “overturning 200 years of libel law,” his chief lament is not an originalist one.Footnote ³¹ Instead, his chief argument is that changes in “our Nation’s media landscape” since 1964 have undermined Sullivan’s logic.Footnote ³² According to Justice Gorsuch, “revolutions in technology” have allowed “virtually anyone in this country” to “publish virtually anything for immediate consumption virtually anywhere in the world.”Footnote ³³ Justice Gorsuch concedes that “this new media world has many virtues,” such as enhancing individuals’ access to information and opportunities to debate, but he appears to believe social media’s virtues are outweighed by negative effects on information quality.Footnote ³⁴ According to Gorsuch, the social-media revolution has undermined the economic model that once gave newspapers and broadcasters professional and economic incentives to strive for accuracy and the ability to invest in the reporters, editors, and fact-checkers necessary to deliver it. He also blames the “new media environment”Footnote ³⁵ for the spread of disinformation, which financially rewards its creators, “costs almost nothing to generate,”Footnote ³⁶ and spreads more effectively than real news.

Gorsuch suggests that these changes undermine the justifications for Sullivan’s actual-malice standard. For example, he questions the need for actual malice to play a role in protecting “critical voices” from defamation liability, implying that the sheer quantity of people who possess an electronic “soapbox” is sufficient to guarantee a diversity of views.Footnote ³⁷ He further indicates that while the actual-malice rule may have made sense in a media environment that had “other safeguards” against “defamatory falsehoods and misinformation,” it no longer makes sense once those safeguards – such as the media’s professional and economic incentives to deliver accurate information – have (or so he claims) evaporated.Footnote ³⁸

In the meantime, Gorsuch criticizes the evolution of the actual-malice standard “from a high bar to recovery into an effective immunity from liability.”Footnote ³⁹ Perplexingly, he contends that actual malice now creates a legal incentive for “publishing without investigation, fact-checking, or editing,” a contention with which many media lawyers would surely disagree.Footnote ⁴⁰ Defendants win cases, after all, by negating fault. But for Justice Gorsuch, the actual-malice standard “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”Footnote ⁴¹ Thus, he concludes, the actual-malice standard now thwarts, rather than bolsters, the “informed democratic debate” that First Amendment theory envisions.Footnote ⁴²

He also decries the fact that “today’s world,” with its “highly segmented media,” casts more and more citizens as “public figures” for defamation purposes, leaving “far more people without redress than anyone [in 1964] could have predicted.”Footnote ⁴³ The effect, he speculates, may be to deter “people of goodwill” from entering “public life” or engaging “in democratic self-governance.”Footnote ⁴⁴ Again he suggests that Sullivan’s original justifications may be thwarted rather than advanced by the expansion of the public-figure doctrine in the social-media era, and he asks the Supreme Court as a whole to “return[] its attention” to the limits that its jurisprudence has placed on the common law of defamation.Footnote ⁴⁵

7.4 Defamation’s Scorecard

Between them, Justices Thomas and Gorsuch lay the fault for the unfortunate state of public discourse at the feet of today’s defamation law, with Justice Gorsuch specifically faulting the law’s inability to address the dangers of “cheap speech” because of the actual-malice and public-figure doctrines. He further suggests that revisiting the constitutional limits on defamation law might help bolster the declining quality of journalism, combat the rise of disinformation and lies, deter campaigns of character assassination, and foster “informed democratic debate.”Footnote ⁴⁶ Is he correct?

First, it is important to note that the common law of defamation was famously complex even prior to the intervention of constitutional law in 1964, and nothing has happened since then to significantly reduce that complexity. Defamation law comes by its complications honestly: Laws protecting reputation appeared in Anglo-Saxon law before the Norman Conquest, and at least as early as the thirteenth century, defamation was a spiritual offense, punishable by excommunication in ecclesiastical courts. Later, ecclesiastical and seigneurial courts divided jurisdiction between them for different kinds of defamation, and in the later Middle Ages and into the sixteenth and seventeenth centuries, the Crown punished “disgraceful words and speeches against eminent persons,” known as scandalum magnatum.Footnote ⁴⁷ Each of these historical developments contributed to the anomalies and absurdities of the common law of defamation,Footnote ⁴⁸ and that was before the Supreme Court effectively froze these complexities into place and began adding many more in the thirty years following 1964.

Taking these complexities into account, it is fair to judge defamation law by how well it protects the values it purports to protect. The tort side of defamation is meant to protect individual reputation, a value no “civilized society” can “refuse to protect.”Footnote ⁴⁹ The tort reflects society’s “basic concept of the essential dignity and worth of every human being.”Footnote ⁵⁰ The tort exists not only to safeguard and vindicate reputational injury but also to compensate injured individuals for dignitary, relational, and economic harms that flow from reputational injury. Moreover, the tort exists to exert a civilizing influence on public discourse: It not only gives society a means for announcing that certain speech violates our norms of propriety but also helps set a necessary anchor in truth. Yet the interests protected by defamation law are not the only interests implicated by the tort’s operations, and the purpose of the “constitutional” parts of defamation law are to make sure the public continues to receive information necessary for democratic self-governance and informed individual decision-making. Further, the Constitution protects citizens’ rights to participate in forming public opinion and, in turn, shaping public policy. Statutory modifications, such as anti-SLAPP laws and the immunity provided to internet service providers by the Communications Decency Act, also attempt to prevent the tort from unduly chilling valuable social activity. Given the complex balancing performed by the constitutionalized and statutorily modified tort of defamation, how does the law score in achieving its various purposes?

Let us start with the good news. One value that today’s defamation law attempts to serve is to encourage media to perform their watchdog role by providing robust coverage of public officials and public figures. By that standard, media in the United States, including our newspapers and broadcasters, have more scope and license to cover and criticize public figures and public officials than any other media in the world. We can see the effects of these robust First Amendment protections in the intense coverage of presidents, congressional leaders, judges, and other influential public officials. It occasionally seems as though no personal predilection of our public officials is too inconsequential to escape notice. It is especially remarkable that the media continue to intensively cover now-former president Trump, despite his long-standing propensity to bring defamation lawsuits against those who criticize him. We also see the effects of First Amendment doctrines that protect newsworthy information about public figures in the spotlight the media shine on celebrities, businesspeople, and other so-called “influencers.” Concededly, coverage is less robust at local levels, but that appears to be a product of economics, not law. Even so, whether Sullivan’s actual-malice rule is essential to enabling the press to play their watchdog role is hard to know, but it stands to reason that being absolved of liability for inevitable human error and simple negligence might aid the vigor with which the press pursues the powerful.

That said, Sullivan’s protective mantle for journalistic errors is not the only variable to consider in evaluating the incentive structure of today’s defamation laws. For publishers subject to it, the potential chilling effect that defamation law exerts on free expression flows not just from the likelihood that a jury or judge will hold a publisher liable; the chilling effect also flows from the high cost of defending against even meritless suits and the unpredictable extent of damages, both of which are exacerbated by common law’s famous complexities and anomalous doctrines such as presumed damages, as well as those of constitutional law. Legal complexity contributes to the high costs of libel defense, and the unpredictability of damages that may be “presumed” when plaintiffs do prevail exert a degree of chill on coverage. This chill would be fine, even desirable, if only meritorious plaintiffs recovered and recoveries were predictably related to actual reputational harms suffered. Yet a survey of the libel landscape reveals lottery-like windfalls for a select few that are only marginally connected to their injuries.

Contrary to Justice Gorsuch’s assertion, some of these recoveries are by plaintiffs who are public figures. Although verdicts for plaintiffs are rare, plaintiffs who do win sometimes obtain verdicts in the millions (or a billion now, as in the Alex Jones cases). Other recent wins include the recent libel verdict against actor Amber Heard procured by her ex-husband Johnny Depp based on allegations of spousal abuse, and the verdict against Oberlin College by a bakery falsely accused of racist acts.Footnote ⁵¹ Settlements, too, may reach into the millions, as attested recently by those obtained by Kentucky teen Nicholas Sandmann against The Washington Post and other media organizations that falsely accused him of bigoted misconduct. (Other Sandmann cases were recently dismissed.) Moreover, in the cases that Smartmatic and Dominion Voting Systems have brought against Fox News and others, the plaintiffs seek damages in the billions with a straight face.Footnote ⁵² Although these verdicts, settlements, and claims may not deter the judgment-proof, nor those ignorant of the law, any media organization must take into account the unpredictable risk of being sued and found liable, even if the Supreme Court’s First Amendment jurisprudence has stacked the constitutional deck in favor of free expression.

Even if defamation law may incentivize robust coverage of society’s influencers for some, it does a relatively poor job of vindicating wrongfully tarnished reputations.Footnote ⁵³ Gorsuch’s diagnosis of the constitutional difficulties that make defamation cases seem impossible for public figures and public officials are real, primarily because lower courts have expanded the public-figure category to include almost anyone who is involved in public life in any way. And even those clearly categorized as public figures may choose to prove actual malice in order to seek punitive damages.

A recent case illustrates why some might believe the actual-malice standard prevents the media from being held responsible for getting the facts wrong. Former vice-presidential candidate Sarah Palin sued The New York Times for libel based on an erroneous editorial blaming a Palin political website for inciting a mass shooting. Palin’s website had featured crosshairs over an Arizona congressional district, and the site “targeted” congressperson Gabrielle Giffords for electoral defeat. After Giffords and others were shot by a deranged gunman in 2011, a controversy arose over what had inspired the gunman, but a contemporaneous police report made clear that the gunman was not motivated by politics. Nonetheless, in 2017, the Times brought up the previously discredited theory about Palin’s website, claiming that “the link to the political incitement was clear.”Footnote ⁵⁴ The Times quickly discovered the error and issued a correction hours after it was published. When the case went to trial, the focus was on whether the error was an “honest mistake” or instead deliberate or reckless.Footnote ⁵⁵ The evidence focused on the rush to finish the piece before its deadline, the editors’ erroneous correction to the work of the writer, the subsequent request for the writer to double-check the piece, and the error made by the fact-checker.Footnote ⁵⁶ Although Palin testified about the alleged harms she’d suffered, the trial focused more on the Times’ journalistic process than the wrong to Palin. And Palin lost based on the latter issue: The jury found no liability, and the trial judge openly stated that he would have found Palin’s evidence insufficient to prove the Times’ error was deliberate or reckless had the jury found differently. Thus, Palin received vindication – if that is what she was seeking – only to the extent of bringing publicity to the Times’ error, which the trial judge called a product of “unfortunate editorializing.”Footnote ⁵⁷

Based on Palin’s verdict, Justice Gorsuch could be forgiven for thinking that the actual-malice standard is an insurmountable barrier to plaintiffs’ recoveries. This is a common and long-standing misimpression. In fact, thirty years ago, distinguished defamation scholar David Anderson complained that high-profile mistakes by the press created an “exaggerated impression in the minds of some potential plaintiffs and lawyers that the press is impervious to public-plaintiff libel suits” when in fact, that is not the truth, as the verdicts, settlements, and costly litigation already discussed above reveal.Footnote ⁵⁸ But Palin’s suit also highlights a more significant flaw in today’s defamation law: Many plaintiffs would like the libel trial to act as an authoritative public declaration that they were wronged by a defendant’s accusation, but this is not a result the libel trial is designed to give.

What of Truth? Justice Gorsuch laid the blame at the feet of defamation law for failing to combat disinformation and misinformation in the social-media era, and he even theorized that more defamation actions would enhance press credibility. Certainly, Gorsuch is not alone in decrying the rise of misinformation and disinformation, though critics cast blame for the situation in different quarters: The Trump White House famously fought a rhetorical war against “fake news” in the press, and the Biden White House proposed, briefly, a Disinformation Governance Board to counter misinformation affecting national security, though the proposal was withdrawn after public outcry. Many critics blame Big Tech platforms for not doing more to eradicate false information, while others fault them for doing too much censorship along partisan lines. Meanwhile, the purveyors of false information include state actors exploiting the power of social networks to undermine social stability or pursue other political ends; rogue actors creating fake news for profit; people using social media to voice their delusional conspiracy theories; partisans primed to believe only the information they want to believe and pass it along to others; lawyers determined to represent clients using whatever “facts” are expedient, ethics rules be damned; and, finally, journalists who fail to adequately investigate, edit, or verify the information they publish – perhaps because of preexisting biases.

Even aside from the fact that defamation law can only address lies that affect individual reputation, only some of the purveyors of misinformation or disinformation are even capable of being deterred by the prospect of a U.S. defamation lawsuit. Moreover, those who can be deterred are probably the smallest contributors to the disinformation crisis. Sloppy journalism might be deterred at the margins by changes in defamation law, though it is unlikely that the inevitable human errors that occur in the rush to meet deadlines will cease, and changes to make it easier to sue for negligent or even innocent mistakes run the risk of deterring coverage of those with the resources (and propensity) to sue.

More to the point, the actual-malice standard already allows plaintiffs to target lies and recklessly spread falsehoods, and a couple of recent lawsuits are setting out to prove it. Smartmatic and Dominion Voting Systems supplied electronic voting machinery for the 2020 presidential election. They became targets of President Trump’s partisans, who alleged that the companies’ machines had assisted in stealing the election from Trump through fraud. Smartmatic and Dominion Voting Systems separately filed defamation cases against various purveyors of this so-called Big Lie, and these lawsuits have become test cases for whether defamation lawsuits can be used to combat hyper-partisan disinformation. But they are also test cases for whether certain news networks have gone too far in embracing such disinformation and lending their credibility to lies and reckless falsehoods.

The defendants in these suits include lawyers who formerly represented President Trump; supporters of President Trump; news networks Newsmax, One America News, and Fox News; and several journalist-news hosts, including Lou Dobbs and Maria Bartiromo.Footnote ⁵⁹ In its 285-page complaint against Fox, Smartmatic seeks $2.7 billion in damages. Dominion’s suit against Fox seeks $1.6 billion. In both cases, defamation law’s failure to insist on only compensating for actual harms means that plaintiffs can claim damages completely untethered to any objective reality.

Nonetheless, the lawsuits make damning allegations, suggesting that the news networks named in the case promoted the Big Lie to stoke ratings – despite having evidence that the allegations of fraud made by network hosts and their guests were false. Judges have so far refused to dismiss the voting-machine companies’ claims.Footnote ⁶⁰ Should these cases go to trial, they will put a powerful spotlight on the editorial choices of the news networks, and there is some indication they have already led Fox to fire some of the news hosts who were most instrumental in trumpeting the voting-fraud allegations. Whether lawsuits such as this will result in more media responsibility and credibility overall seems dubious, however, especially since the facts are distinctly atypical. Nonetheless, plaintiff victories could potentially bankrupt some of these news networks, sending a klaxon signal warning that the actual-malice standard is not, after all, a free pass for falsehoods.

7.5 First Do No Harm

As detailed above, Justice Gorsuch is simply wrong to assume that actual malice is an insurmountable barrier to recovery for defamation. Nonetheless, some of Gorsuch’s skepticism regarding the current state of defamation law seems justified: Defamation law inadequately vindicates reputation, and it only combats disinformation at the margins – though, contrary to his assertions, it does do that! But whether defamation law would perform these tasks better if Sullivan and its progeny were to be repealed is by no means clear, especially since most of the purveyors of disinformation seem to be beyond the reach of defamation law. While allowing a wider swath of plaintiffs to bring suit by proving negligence rather than actual malice might lead to more plaintiffs achieving vindication, it seems unlikely that it would significantly bolster the quality of journalism in a way that leads to more “informed democratic debate.”Footnote ⁶¹

Gorsuch’s prescription ignores the problem that Sullivan’s holding was trying to solve, namely, the use of defamation lawsuits as a tool that the powerful use to delegitimize and defang their critics. In Sullivan, Southern officials sued civil-rights leaders and a Northern newspaper, The New York Times, for publishing an advertisement decrying the repeated arrests and harassment of Dr. Martin Luther King. The advertisement contained minor inaccuracies, the kind that newspapers inevitably make even when trying to get the facts right. These minor errors were enough to justify the Alabama jury in awarding the police commissioner $3 million from the Times and the other defendants. At this time, this was the biggest libel verdict in U.S. history,Footnote ⁶² and the jury made the award despite the fact that the commissioner had “made no effort to prove that he suffered actual pecuniary loss.”Footnote ⁶³ Had the verdict been allowed to stand, the South would have continued to use libel law to hamstring the Civil Rights Movement and to punish newspapers for making minor factual errors while performing their watchdog role. Had it been allowed to stand, papers like the Times would have faced the choice between their economic survival and ceasing to cover the most important news stories of the era.

To prevent this result, the Supreme Court famously held that public officials could not use the law of torts to punish their critics: They did so by beginning the conversion of the defamation law from a no-fault regime to a largely fault-based regime, as well as one that requires plaintiffs suing for stories involving matters of public concern to prove falsity. The constitutional standards protect merely negligent defamatory falsehoods, giving journalists and citizens “breathing space” to report and opine about the doings of public officials.

Justice Gorsuch fails to appreciate that this breathing space is still needed. Rich people still sue their critics for defamation because they can: It’s a relatively easy way to inflict pain on one’s critics and to make would-be critics think twice, even if the defendant ultimately “wins.” Politicians still sue the relatively powerless to punish them for their temerity in speaking out. The media, while not the only targets of weaponized defamation suits, still deserve protection not only because they are repeat players but also because, as Justice Gorsuch recognized, they have played a special role in producing an informed citizenry since the country’s founding. Overturning Sullivan would subject an economically weakened and unpopular press to even more variable defamation laws, making them easier targets for those who despise them and their roles. If the goal is to ensure that informed democratic debate does not suffer, it is hard to see how jettisoning the actual-malice standard accomplishes it, unless it is replaced by a series of complex doctrinal reforms.

7.6 A Prescription for Reform

Even so, Justice Gorsuch is clearly right about one thing: Defamation law needs reform. Ideally, that reform would look comprehensively at the various common-law, constitutional, and statutory components, and study how they work together. It would bring simplicity and clarity to the “doctrinal intricacy” of current law. It would consider whether doctrines such as libel, slander, and presumed damages have outlived their usefulness. It would also develop new remedies to better vindicate reputation and set the record straight, construct new incentives for journalists of all stripes to adhere to professionally developed standards for getting the facts right, and establish new deterrents to libel bullying, including a reduction of the availability of lottery-like windfalls obtainable only by the fortunate few. While reform is needed, however, simply cutting the constitutional strands of the Gordian Knot of defamation law risks unraveling protections for expression without enhancing the other goals the law is supposed to advance.

8.1 Introduction

Coordinated campaigns of falsehoods are poisoning public discourse.Footnote ¹ Amidst a torrent of social-media conspiracy theories and lies – on topics as central to the nation’s wellbeing as elections and public health – scholars and jurists are turning their attention to the causes of this disinformation crisis and the potential solutions to it.

Justice Neil Gorsuch recently suggested that, in response to this challenge, the U.S. Supreme Court should take a case to reconsider New York Times v. Sullivan, the foundational First Amendment precedent in defamation law.Footnote ² A major premise of Justice Gorsuch’s critique of Sullivan is that the changing social-media dynamics – and the disinformation crisis that has accompanied them – threaten the nation’s democracy. He argues this changed terrain may call for less stringent constitutional protections in defamation actions. This chapter explores and challenges that critique. Justice Gorsuch is correct that rampant social-media disinformation poses a grave risk to our political and social stability, but there is a troubling disconnect between the anti-disinformation and pro-democracy concerns he articulates and the doctrinal revisions he considers. When the interrelationships between disinformation, defamation, and democracy are interrogated – and especially, when they are situated within the constitutional value of the press function that served as the backdrop for Sullivan – it becomes clear that unwinding the Sullivan doctrine would not be a productive tool for remedying the problem of rampant social-media lies. Indeed, doing so carries the very real risk of exacerbating the problem. Abandoning the Sullivan line of protections would impair those valuable press speakers who are actively prioritizing trustworthy newsgathering and corrective reporting, and it would do so with no meaningful payoff in solving the online-disinformation problem that seems to be driving this proposed reconsideration.

This inquiry matters. Sullivan is not exclusively a press-freedom case, but at this critical juncture, it is a centerpiece of protection for some core press functions (performed by both legacy media and others) that are crucial to healthy public discourse. A Sullivan scaleback harms those entities that are incentivized to get information right, to invest in careful newsgathering, and to engage in important journalistic investigations exposing those who peddle disinformation. At a moment of declining newsroom and press-litigation resources and of increased willingness of public people to weaponize defamation as a tool for silencing and deterring critics, the risks of self-censorship voiced by the unanimous Sullivan Court are especially grave.

Representative democracy needs the press function to survive and flourish. There is every reason to believe that a rollback of Sullivan would compound rather than alleviate the disinformation problem and would further imperil the fragile democracy.

8.2 The Sullivan Doctrine

New York Times v. Sullivan came to the Supreme Court at another moment of intense focus on the need for vibrant dialogue in American democracy. As the Civil Rights Movement pressed across the Deep South, its story was carried through the nation by way of prominent Northern newspapers, especially The New York Times.Footnote ³ The case arose out of a full-page editorial advertisement that the Times published, which criticized the way that police had used violence and illegal tactics to try to quell the peaceful protests in Montgomery, Alabama.Footnote ⁴ The basic thrust of the charges contained in the advertisement was true, but the advertisement contained minor factual errors.Footnote ⁵ Sullivan, the Montgomery police commissioner, sued for defamation, and Alabama common law did not require that he prove either falsity or fault. The trial judge instructed that the statements were libelous per se and that general damages could be presumed. A jury awarded a half-million-dollar verdict against the newspaper, which was upheld by the Alabama Supreme Court.Footnote ⁶ The suit – one of eleven filed by Alabama officials alleging libelous reporting of local events and seeking a total of more than five and a half million dollars in damages – was a clear effort to wield defamation law as a silencing mechanism, and it worked. The newspaper pulled correspondents out of the state for a year in response.Footnote ⁷

In a unanimous opinion that centered on the intersection of democratic self-governance and free speech, the Supreme Court held that the Constitution imposes limitations on defamation liability.Footnote ⁸ The First Amendment, the Court said, prevents “a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”Footnote ⁹ The deliberately demanding standard operates “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”Footnote ¹⁰ Criticism of the powerful – and the conversations that emerge out of this criticism – are at the core of the First Amendment’s purpose and value to us as a citizenry.Footnote ¹¹ The doctrinal incentives should spur and support those conversations. The Sullivan fact pattern demonstrated the chilling effect posed by the threat of staggeringly expensive litigation and damages. The standard that the Court developed in Sullivan offered protection to some false statements, which the Court deemed “inevitable in free debate,” as a way of ensuring that true statements would have “the breathing space” that they need to survive.Footnote ¹² After Sullivan, a set of cases extended this actual-malice standard to so-called public figuresFootnote ¹³ – those who have achieved either broad fame or have become central to some specific conversation on a matter of public concern.Footnote ¹⁴ Sullivan is not a press-specific case – its standard applies anytime a public plaintiff brings a defamation action – but in the last six decades, it has been relied upon heavily by those performing the press function.

8.3 Justice Gorsuch’s Critique

In his dissent from denial of certiorari in Berisha v. Lawson,Footnote ¹⁵ Justice Gorsuch argued that, in light of the new media landscape and the disinformation crisis that it has enabled, the Court should reconsider the Sullivan framework.Footnote ¹⁶

The libel plaintiff in Berisha, the son of a former president and prime minister of Albania, contended that a book defamed him by implicating him in an arms-dealing scandal.Footnote ¹⁷ Justice Gorsuch maintained that his colleagues on the Court should have taken the case. He argued that a “new media environment” that “facilitates the spread of disinformation” requires reevaluation of the constitutional standard.Footnote ¹⁸ Pointing to the rapid spread of social-media conspiracy theories and other online lies, he suggested that “the deck seems stacked … in favor of those who can disseminate the most sensational information as efficiently as possible without any particular concern for truth.”Footnote ¹⁹ Indeed, he noted, “the distribution of disinformation” – which “costs almost nothing to generate” – has become a “profitable” business while “the economic model that supported reporters, fact-checking, and editorial oversight” has “deeply erod[ed].”Footnote ²⁰ Justice Gorsuch suggested that the justification undergirding the Sullivan standard may have less force “in a world in which everyone carries a soapbox in their hands”Footnote ²¹ and where there are fewer “safeguards … to deter the dissemination of defamatory falsehoods and misinformation.”Footnote ²² Social-media lies are so fast and so appealing, Gorsuch wrote, that “falsehood and rumor dominate[] truth.”Footnote ²³ Importantly, then, the factual foundation for Justice Gorsuch’s concern appears to be rooted in dissemination and spread – concerns about the way that modern social-media technology amplifies untruths and the way that propaganda outpaces truthful information from the trustworthy professional newsgatherers that may have predominated the communication landscape as understood by the Justices who decided Sullivan.

Today, the thinking goes, the best way to curb these viral, coordinated falsehoods is to make it easier to bring defamation actions. In Justice Gorsuch’s view, lowering the barrier to doing so would serve anti-disinformation and pro-democracy aims.

8.4 A Poor Tool for the Crisis

Upon closer consideration, however, it seems the doctrinal revision Justice Gorsuch has in mind would have the exact opposite effect. As a practical, legal, and structural matter, it would advance neither the goal of curbing disinformation nor the interest in fostering a healthy democratic public sphere.

As an important starting matter, much of the most-problematic disinformation at the core of the crisis is not itself defamation. Huge swaths of the rampant lies that have caused the gravest concern in recent years – falsehoods about medical treatments,Footnote ²⁴ vaccination,Footnote ²⁵ elections,Footnote ²⁶ climate change,Footnote ²⁷ and a wide variety of other social and political issues – are not attacks on the reputation of any individual or entity. They lie, to be sure. But they do not defame. When a widely shared social-media post claims broadly that an election was stolen or a vaccine is a deep-state plot, there is no obvious reputational attack at issue and thus no basis for a libel suit.

Justice Gorsuch’s stated concerns are about falsehoods more generally, and he is not wrong that these fast-spreading lies are polluting public discourse and inflicting harm. However, the harm inflicted is a harm against public sensibility that stems from an assault on facts, not a harm against a potential defamation plaintiff that stems from an assault on reputation.Footnote ²⁸ While defamation law aims to ensure that our public discourse has an anchor in truth, it only concerns itself with one quite-specific anchor, and it is not the one with which Justice Gorsuch seems most concerned. Adjustment of the Sullivan standard simply does not do the major anti-disinformation and pro-democracy work that needs to be done.

Occasionally, of course, the two overlap – for example, when disinformation is not merely a generic lie about a stolen election but a lie about a particular postmaster backdating mail-in ballots,Footnote ²⁹ or particular election workers tampering with votes,Footnote ³⁰ or a particular voting-machine company rigging an outcomeFootnote ³¹ – and defamation litigation might then be a useful, pro-democratic tool in the ways Gorsuch apparently envisions. Some conspiracy theories spread falsehood that is reputation-harming.Footnote ³² But there is no reason to believe that disinformation as a wider phenomenon is going to serve itself up in a way that merits a defamation claim.

Indeed, significant research in this area suggests that it often does not. Much social-media disinformation is generated by a very small number of initial producers for money or political gain and then disseminated broadly on platforms by armies of others who make broad claims that are false but not harmful to any individual reputation. A powerful recent illustration is the so-called Disinformation Dozen, a group of individuals found to be responsible for almost two-thirds of the anti-vaccine content circulating on social-media platforms.Footnote ³³ While some of the content produced by the Disinformation Dozen has been leveled at individuals,Footnote ³⁴ much of the false and deceptive anti-vaccination content is packaged in the form of misleading data designed to sway opinion rather than target reputation.Footnote ³⁵ This is not a Sullivan problem, and reconsideration of Sullivan is not a solution to it. There is no reason to believe that adjusting constitutional free speech standards in defamation law would be an efficient or effective tool for tackling the core of the issue.

To the extent that the concern here is actively defamatory disinformation campaigns – wholly invented, consciously distributed conspiracy theories that knowingly target an individual’s reputation with falsehoods for clicksFootnote ³⁶ – this material already falls outside the scope of Sullivan protection. A number of important debates are emerging about the purveyors of these falsehoods – including whether even a successful defamation suit can dislodge an audience’s belief in these conspiratorial lies or meaningfully impact the incentives of those producing them.Footnote ³⁷ But this defamatory material is, by definition, distributed with knowing falsity or reckless disregard for the truth. The Sullivan doctrine, as it now stands, envisions liability for these actors, and a reconsideration of the doctrine would, again, be a poor instrument for tackling the concerns that continue to exist.

Moreover, as a practical matter, the online social-media mobs disseminating lies are not natural targets for defamation suits, because there are so many communicators in the amplification process and because so many of them may be anonymous.Footnote ³⁸ Take, for example, one common disinformation pattern: A lie initiates on an anonymous web platform like 4chan, makes its way through private or semiprivate groups on social media, then gains traction on Reddit or YouTube before finally emerging into mainstream social-media platforms like X, Facebook, and Instagram.Footnote ³⁹ Breaking down the networks that power the spread of that disinformation might require thousands of actions against individual users. The ability to target any one user might pose real challenges. It would, as a starting matter, require knowledge of identity. But both inauthentic bots that mimic human behavior through programming and deceptive accounts that strategically adopt personas of individuals from marginalized groups are regularly deployed to amplify messages and shape political discourse.Footnote ⁴⁰ Moreover, real human social-media users may shield their identities through pseudonyms or more sophisticated tactics that obscure a user’s IP address or geographic location.Footnote ⁴¹ Bringing a suit against an unknown defendant is possible but not always practical, and plaintiffs may not be able to justify the expense of such extensive discovery.Footnote ⁴² Additionally, pursuing action against an unknown defendant runs the risk that revealing the defendant’s identity may defeat jurisdiction or lead to the conclusion that the individual lacks the personal resources to pay out damages in the event of a successful claim.Footnote ⁴³ Individual social-media users are likely not attractive targets for defamation suits because they lack the assets to pay damages,Footnote ⁴⁴ and the platforms themselves are statutorily immune from most defamation suits under Section 230 of the Communications Decency Act.Footnote ⁴⁵ Thus, the adjustment to Sullivan that Justice Gorsuch floats as an anti-disinformation, pro-democracy tool is unlikely to be effective against many of the key targets. In a wide array of disinformation cases, defamation suits are simply the wrong tool for the job.

8.5 Preserving the Press Function

The actual likely targets of such suits? News organizations, which carry libel insurance and have more assets, and so are much more susceptible to the kind of situation Sullivan squarely addresses – defamation suits used by the powerful to intimidate and silence their critics.Footnote ⁴⁶

Thus, it is not merely the case that an unwinding of Sullivan is a poor instrument for addressing the concerns that are at stake in the social-media disinformation crisis. After all, to say that it is not a full solution does not mean that it might not be a partial one worthy of consideration. But weighed against these weak benefits are some staggering costs to the operation of the press function, which has to be a part of the equation if the goal is to reduce disinformation and preserve the discourse central to democracy.

Defamation law is a tool that is not particularly viable against the online mobs of coordinated lies, but that will, without the carefully crafted constitutional buffers from Sullivan, increase the burden on those that are financially and professionally invested in providing accurate information to the polity. Removing those protections, then, would not only fail to meaningfully advance Justice Gorsuch’s anti-disinformation and pro-democracy goals, but actively harm them.

Performers of the press function are among the rare remaining information producers with information-production models that center on building trust, maintaining professional standards, and serving as a watchdog with an accountability mission. The press function, performed in both its traditional and its evolving structures, is invaluable to democratic self-governance.Footnote ⁴⁷ This is because press communicators are among the most likely to have norms of investigating, verifying, and contextualizing material for audiencesFootnote ⁴⁸ and to have reader and viewer relationships that require them to hold themselves accountable and “show their work.”Footnote ⁴⁹

Beyond this, the press has been responsible for some of the most vital fact-checkingFootnote ⁵⁰ and falsehood-countering tools of our time, actively correcting disinformation about public health,Footnote ⁵¹ politics,Footnote ⁵² and other topics important to public discourse and democracy.Footnote ⁵³ Certainly, our growing understanding of disinformation (and of the audiences that are groomed to believe it) makes clear that simple counter-information and exposure alone are inadequate weapons for this battle. But it remains the case that the press performs those functions Justice Gorsuch highlights as crucial to democracy.Footnote ⁵⁴ In response to the tsunami of lies, news organizations are combatting the spread of disinformation with good journalism. This press function includes investigative work that reveals the organized disinformation efforts that are of such concern to Justice GorsuchFootnote ⁵⁵ and that exposes the origins of conspiracy theories.Footnote ⁵⁶ Americans are aware of the scope and gravity of the risk of disinformation in part because of the operation of this function.Footnote ⁵⁷ A paring back of Sullivan protections, making it easier to shut down critical reporting, will make it more difficult for press organizations to do the work necessary to reveal these massive disinformation operations. The press exposes the existence of disinformation and then works to remedy its harm. At its best, the press function includes research and reporting that grapples with widely circulated false information,Footnote ⁵⁸ provides accurate and well-sourced truth, and exposes the harmful consequences of the lies.Footnote ⁵⁹

This may be the worst possible moment to strip the core protections for those performing this press function. Organizations that are working against disinformation with real newsgathering efforts are already seriously struggling. “[S]uccessive technological and economic assaults have destroyed the for-profit business model that sustained local journalism in this country for two centuries.”Footnote ⁶⁰ Critically important democracy-enhancing local news is especially financially imperiled, in ways that have been accelerated by the COVID-19 crisis.Footnote ⁶¹ Organizations that engage in reporting have lost most of their advertising dollars to corporations like Google and Facebook that engage primarily in repeating – including repeating of disinformation. Citizens in a democracy rely on performers of the press function to help them “stay connected to and informed about what is happening in their backyards – especially in their schools, their governments, and other critical institutions and infrastructures,”Footnote ⁶² and in the absence of this information, streams of disinformation fill the void. Performers of the press function today not only have fewer resources to engage in important coverage of local and national government and other powerful people and organizations,Footnote ⁶³ but also face steep rises in libel defense costs that they are no longer well-resourced enough to shoulder. The cost of defending a libel suit can easily wipe out a local news organization.Footnote ⁶⁴

All of this adds up to exactly the worry the unanimous Sullivan Court expressed: that freedom of speech and press would not be exercised, purely because the press speaker was unable to risk the financial consequences. Justice Gorsuch himself noted in Berisha that the economic model that supported reporters and newsrooms has eroded. He suggests this should lead to less protection in defamation actions, but he may well have it backwards. This is not the moment to be reconsidering the valuable Sullivan protection, if anti-disinformation and pro-democracy goals are taken seriously.

To be sure, press speakers are not uniformly the heroes of the disinformation story. As public confidence in the media hits record lows and the media is increasingly distrusted as overly partisan, its capacity to counter disinformation may be diminished.Footnote ⁶⁵ Indeed, a general decline of public faith in authority, expertise, and the traditional institutions of knowledge and democracy means the role of the press function is itself in a state of flux.Footnote ⁶⁶ Moreover, new scholarship is helping to paint a fuller picture of the interrelationship between some mainstream media outlets and the spread of disinformation. At least some research points to asymmetric political polarization within the media ecosystem that produces a “propaganda feedback loop” far less governed by the reality-check dynamic of professional journalistic norms.Footnote ⁶⁷ Additionally, some have suggested that even more traditional journalistic organizations aiming for neutral, transpartisan newsgathering have become tools for the spread of distorted narratives. Sometimes this happens as traditional journalists, in the name of objectivity, engage in performative neutrality that amplifies disinformation.Footnote ⁶⁸ Sometimes mainstream media outlets spread disinformation into the wider public consciousness merely by telling the potentially newsworthy story of the existence of conspiracy groups and their lies, only to have the coverage itself become a tool for the spread of those lies. Because social-media algorithms rate mainstream journalistic sources as more credible, news stories that in any way reinforce conspiracy theories may be filtered less and have a unique power as a vector for virality.Footnote ⁶⁹ Likewise, because users often read only headlines when scrolling through social-media timelines, researchers are finding that users are sharing journalism from the mainstream media to spread and legitimate disinformation even when the news story itself does not support the lie.Footnote ⁷⁰

Plainly, there is much work to be done if we are to address all of these issues and advance pro-democracy and anti-disinformation goals. But again, rolling back the Sullivan doctrine is no way to do so. Constitutional protection in defamation actions is not some lever that one can pull to address these information-distribution issues. It does not speak to most outrage-media issues, does not solve most matters of propaganda masquerading as news, and is not a useful tool for addressing most confusion and magnification issues. The scope and contours of these harms, as others have noted, “are problems of amplification – amplification by social media platforms and amplification by journalists,” and the complex set of norms, regulatory incentives, and laws to address them are going to have to focus on “the architecture of our public square,”Footnote ⁷¹ not a doctrine that balances reputation and public dialogue.

Justice Gorsuch is right that democracy cannot afford to ignore the imminent crisis of disinformation. But democracy also cannot afford to fruitlessly hamstring the few remaining entities making press-function contributions to its public discourse. The pattern of powerful people attempting to use defamation as a tool to punish and deter critics has not diminished.Footnote ⁷² If anything, recent examples provide forceful evidence that the threat continues to loom large. At this crucial moment, when the preservation of the press function is a matter of immediate concern, the facts on the ground signal that reconsideration of Sullivan will not be democracy-enhancing. It will be democracy-threatening.

9.1 Introduction

In the spring of 2022, visitors to the Smoking Gun website would find a challenging “game, where [one’s] wasted time [was] well spent.”Footnote ¹

“For today’s ‘Friday Photo Fun,’” the website explained, “readers must examine five mug shots and match up the respective defendants with the crime for which they were arrested.” There appeared five photos of sorry-looking individuals arrested for crimes both serious and not so much. A tattooed white man nabbed by police for narcotics possession; a black woman arrested for speeding; three other individuals arrested for driving while intoxicated, assault and battery, and grand theft, respectively. The match-the-mug-shot-to-the-crime game appeared every Friday.

The Smoking Gun gathered those police booking photos through freedom-of-information laws, statutes designed to give the public access to important governmental information. For a long time in the United States, mug shots have been a part of such governmental openness: The thought was that the public should know who’d been arrested and on what grounds, and how they’d looked at the time of arrest in order to ensure that police had not battered them. Mug shots also helped to avoid mistaken identity, access proponents said. In the past, it was mainly journalists who were those proponents, who would receive the images from police and later assess them for newsworthiness, publishing only those they thought relevant for public view.

Today, it’s not only journalists who are interested in mug shots. As the Smoking Gun matching game shows, other types of websites publish the images for reasons beyond news value; some have no focus on news value at all.

This chapter considers mug shots and other once-public information about those arrested by police. It finds that, in direct response to worries about internet-based abuse and online longevity, legislatures and courts have taken action to shield such information from public view. It notes that journalism has shifted to include mug shots in reporting less often and, in some cases, to remove from public databases those mug shots published as a part of older news stories. Given such shifts, this chapter predicts that, soon, most mug shots will no longer be made available through public-records requests and those whose mug shots are published could one day bring a valid publication invasion-of-privacy claim. Finally, given such shifts and potential shifts, it predicts one’s entire criminal past, including one’s older mug shot, could one day be even more strongly protected on privacy grounds.

9.2 Two Shifts in Law Regarding Mug-Shot Privacy

As ubiquitous as mug shots may seem today online and otherwise, at the turn of the twentieth century, courts routinely protected mug shots on privacy grounds. In short, there is support in early case law for a right to privacy in booking photos.

Consider Joyce v. York,Footnote ² an 1899 case from New York in which the court suggested even a habitual criminal could have an action against police for including his photograph in a so-called rogue’s gallery published for others to view. The court wrote that the “wrong [was] in the nature of a libel,”Footnote ³ which back then meant at times that anything either true or false that harmed reputation could lead to liability if published. How one looked at the time of arrest, that court suggested, impacted the way others perceived the person, even if the photograph and the information regarding the arrest were accurate.

In Itzkovitch v. Whitaker, too, a decision from 1905, the Louisiana Supreme Court forbade police from circulating an arrestee’s booking photograph even though the man was notorious for running a pawn shop and had been arrested several times. “Everyone who does not violate the law can insist upon being let alone (the right of privacy),” the court wrote, and indicated that an individual not yet convicted would be protected from having his booking photograph published to others too.Footnote ⁴ By 1906, the Louisiana court ordered police to return to the not-yet-convicted arrestee all photographic negatives of his mug shot and “to erase and cancel all record entries of the photographs and of the measurement made of the plaintiff” too.Footnote ⁵

Judges in other states agreed; most courts that had decided lawsuits involving booking photos back then found privacy rights in them,Footnote ⁶ especially – but not exclusively – before the arrestee’s conviction. Those states included Indiana,Footnote ⁷ Maryland,Footnote ⁸ Missouri,Footnote ⁹ and New Jersey.Footnote ¹⁰ Courts were especially concerned about the lasting harm that such images would have on a person’s reputation no matter the outcomes of the underlying criminal case. “Upon [an arrestee’s] vindication,” the New Jersey court wrote in explanation, “the circulation of such information [] could not be undone.”Footnote ¹¹

Then, there came a shift in that sort of privacy-protective awareness regarding mug shots. In the 1960s and 1970s, as federal and state governments opened more of their files to the public view as a measure of support for the public’s right to know about government matters, mug shots and other arrest information became more accessible, and privacy protections in such information seemed less of a concern. Newspapers back then wanted such information so that they might publish news about certain arrests and include, as part of that reporting, the visual images of those charged with particularly noteworthy crimes. They argued it would be best for the public: Community members’ minds would be eased if they saw the person who had been placed in custody for a heinous crime, for one. Moreover, as the use of illustrations and thereafter photographs grew more commonplace in newspapers, readers began expecting to see such things. Legislatures and courts came to trust that such ethics-abiding publishers would not make criminal information public unless nearly everyone would agree that it was something the public should know; the personal privacy concerns of those arrested for murder, for example, seemed far less important than the press’s freedom to report on such a crime. In short, back then, at a time when the word “publisher” was nearly synonymous with ethics-abiding journalism, the public’s right of access trumped any individual’s right to privacy.

A good example of that sensibility is the 1996 Sixth Circuit’s decision in Detroit Free Press v. Department of Justice.Footnote ¹² There, the Detroit Free Press had asked for the mug shots of individuals arrested on federal charges – they were accused of having ties to organized crime – and the appellate court agreed that such access would be appropriate. The judges of the Sixth Circuit, however, first explicitly rejected the argument that the release of such images would be harmful to those arrested even though they had not yet been convicted.Footnote ¹³ Instead, such release could at times be helpful to the individuals, the court reasoned, suggesting that published booking images could help reveal mistaken identity or police use of excessive force.Footnote ¹⁴

Second, the court decided, the privacy concerns of the arrestees were of absolutely no concern. They had “already [been] indicted,” the court wrote, and “had already made court appearances after their arrests” and, during that process, their names had been made public. Therefore, the court reasoned, the additional release of their mug shots implicated no privacy interests whatsoever because some in the public knew them or knew of them from such coverage already, and at least family and friends knew what they looked like; any release “could not reasonably be expected to constitute an unwarranted invasion of personal privacy” on such facts.Footnote ¹⁵

By that point, the Supreme Court had suggested in Paul v. DavisFootnote ¹⁶ that an individual whose mug shot had been included as part of a list of shoplifters had no valid constitutional claim against the police for its release even though he had not been convicted of that or of any crime. It wasn’t the perfect parallel because the justices had also suggested that a defamation claim at the state level might be possible, but the rejection of the constitutional claim was noteworthy nonetheless.

The World Wide Web was already hitting the mainstream when the Sixth Circuit’s opinion came down. Suddenly, the word “publisher” meant not only an ethics-abiding newspaper, like the Detroit Free Press, but anyone with a computer who could publish anything to the world with the click of a mouse.

Those newfangled sorts of publishers eventually recognized that the public had a real interest not only in the more-newsworthy mug shots but in all mug shots. Websites appeared that published photos of all arrested; some of those websites suggested that those who wanted the images taken down could pay to make that happen.

Soon, in response to such publications and the clicks that they generated, ethics-abiding newspapers, no doubt feeling they had to keep up, similarly began to publish pages of the images of those arrested with little regard to the news value. Mug shots had become a “game changer,” some newspapers reported, “the most popular thing on the website” and therefore a driver of internet traffic to what might otherwise be a news site in economic trouble.Footnote ¹⁷ Eventually, 40 percent of newspapers that moved online would publish mug-shot galleries.Footnote ¹⁸

And so, in 1999, just three years after the Sixth Circuit in Detroit Free Press found no privacy interests in mug shots because many already knew what arrestees looked like, a federal court in Louisiana switched gears and suggested that even a public figure – a man who had owned a National Football League team and was known widely for his work in the NFL, a man arrested in conjunction with an investigation into government corruption – would have privacy protections for his mug shot. In its decision in Times Picayune Publishing Group v. United States Department of Justice,Footnote ¹⁹ the court wrote that mug shots were more than just photographs, and for a few reasons: They were linked with the “notorious”; they recorded “unflattering facial expressions”; and “arguably most humiliating of all, a sign under the accused face” with a criminal identification number.Footnote ²⁰ “A mug shot preserves in its unique and visually powerful way, the subject individual’s brush with the law for posterity,” the judge wrote, and its “stigmatizing effect can last well beyond the actual criminal proceedings.”Footnote ²¹ Current dissemination could trigger future misuse by rivals, the court reasoned, specifically worrying what might become of the mug shot in future years, “including the reappearance of [a] mug shot in the media,” leading to renewed personal embarrassment and discomfort for the depicted individual.Footnote ²²

In line with that, in 2016, twenty years after its rejection of privacy in mug shots, the Sixth Circuit sitting en banc changed its mind and overruled its earlier suggestion that there were no privacy rights in booking photos.Footnote ²³ The court’s opinion reflected those same concerns about internet publishers that had been hinted at in the Times Picayune decision. These mug shots, these “[e]mbarrassing and humiliating facts,” the court wrote, that “connect[ed] individual[s] to criminality,” decidedly implicated those individuals’ privacy interests.Footnote ²⁴ Now, in an internet age, “[a] booking photo cast a long, damaging shadow over the depicted individual.”Footnote ²⁵ Now, the forever internet meant that arrested individuals might never escape their criminal pasts – meaning that the modern world was far different, the judges wrote, from what existed two decades before:

“In 1996,” the Sixth Circuit judges continued, “this court could not have known or expected that a booking photo could haunt the depicted individual for decades.”Footnote ²⁷ And so, even though the images at issue in 2016 involved police officers who had been arrested for drug crimes and police brutality – a decidedly newsworthy story – the court overruled its earlier decision. “The internet and social media,” the court wrote, had by then “worked unpredictable changes in the way photographs [were] stored and shared.” Mug shots suddenly “no longer ha[d] a shelf life” and the “humiliating, embarrassing [and] painful”Footnote ²⁸ images would remain forever accessible even though the individual had changed their ways. The judges decided that those depicted had privacy interests in them after all.

By that point, following the lead of the Times Picayune court, two federal appellate courts had similarly ruled in favor of some level of privacy in mug shots.Footnote ²⁹ There was also strong language in three key cases from the Supreme Court that reflected those same privacy concerns, language made ever more relevant in an internet age, and some courts deciding mug-shot cases shifted to rely in part on these three cases and not on the breezy mention of mug shots in Paul v. Davis.

First, Doe v. McMillan,Footnote ³⁰ not a mug-shot case but one involving concerns about the long-lasting effects of minors’ criminal histories. There, the Supreme Court suggested in 1973 that seventh-grade students named in a congressional report investigating a “troubled school” had privacy interests in their specific instances of “deviant conduct” and their “criminal violations.”Footnote ³¹ The justices worried in McMillan specifically about potential future harm for those students who would in a few years become adults: With the publication of such material, the justices wrote, the students’ “future careers” would be implicated. Therefore, while the Speech and Debate Clause would protect Congress’s own publication of the material, the justices reasoned, it would not protect “a private republication of documents” containing such information even though the information had been “introduced and made public at a committee hearing” and even though “the hearing was unquestionably part of the legislative process.”Footnote ³² Such material, though made public, “would … invite gratuitous injury to citizens for little if any public purpose.”Footnote ³³

Concurring Justices Douglas, Brennan, and Marshall even more explicitly worried what the public revelation of such information would do to the children in later years. “We all should be painfully aware of the potentially devastating effects” of such government-collected data, they wrote. “Arrests … [and a]cts of juvenile delinquency are permanently recorded and they and other alleged misdeeds or indiscretions may be devastating to a person in later years when he has outgrown youthful indiscretions and is trying to launch a professional career or move into a position where steadfastness is required.”Footnote ³⁴

Second, Department of the Air Force v. Rose.Footnote ³⁵ There, in 1975, the Court similarly worried that information that had once been released at the Air Force Academy – the names of those convicted of violating Honor Code provisions not to steal, among other thingsFootnote ³⁶ – would lead to harm to the individuals and therefore held that that information should be redacted from any reports turned over to the public. Those who once knew that information “may have wholly forgotten” it, the Court wrote in explanation, and the “risk to the privacy interests” of such an individual, especially one who remained in the military “cannot be rejected as trivial.”Footnote ³⁷ Such “privacy values” included not only “practical disabilities, such as the loss of employment or friends,” but “lifelong embarrassment, perhaps disgrace” as well.Footnote ³⁸

And, finally, United States Department of Justice v. Reporters Committee for Freedom of the Press.Footnote ³⁹ So-called “rap sheets” containing an individual’s “history of arrests, charges, convictions and incarcerations”Footnote ⁴⁰ could be protected on privacy grounds, the Justices decided in 1989, even though the information had once been made public by police and was therefore in effect part of the public record. “The privacy interest in a rap sheet is substantial,” the Court wrote, and especially so given the powerful memories in computers that could include information “that would otherwise have surely been forgotten” by people.Footnote ⁴¹ “Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations,” the Justices wrote, the more easily accessed “computerized summary located in a single clearinghouse of information.”Footnote ⁴² “If a cadet has a privacy interest in past discipline that was once public but may have been ‘wholly forgotten,’” the Court wrote, referring to Rose, “the ordinary citizen surely has a similar interest in the aspects of his or her criminal history that may have been wholly forgotten.”

It’s true that all five of those cases – Detroit Free Press, Times Picayune, McMillan, Rose, and Reporters Committee – mainly focused on access and on the information about past and present crimes that would be released to the public. But, given such powerfully protective language, a potential right to privacy in mug shots and other arrest information is arguably broader than access. Today, there’s also a suggestion that stretches beyond McMillan: that the right to privacy in such information could extend to the publication of such information as well.

That privacy interest is reflected in the privacy sections of the Second Restatement of Torts, published in 1977. In “Publicity Given to Private Life,”Footnote ⁴³ the Restatement authors specifically suggest that one’s criminal past may well be protected on privacy grounds, that “a lapse of time” is “a factor to be considered” in such a privacy claim.Footnote ⁴⁴ “Jean Valjean,” an example reads, “an ex-convict who was convicted and served a sentence for robbery, has changed his name, concealed his identity, and for twenty years has led an obscure, respectable and useful life in another city far removed.”Footnote ⁴⁵ Any newspaper that would ferret out his criminal history and publish it, the Restatement says, could well be liable for invading Valjean’s privacy.Footnote ⁴⁶

Moreover, the Restatement authors suggested that there would also be privacy in some of “a man’s … past history that he would rather forget.”Footnote ⁴⁷

Such interests – a right to privacy in truth that includes past information about an arrest; what some might consider in a colloquial sense a right to be forgotten – did not come out of the blue. As early as 1884, a court wrote that it would be a “barbarous doctrine” should newspapers be allowed to report anything truthful that they wanted, including “crimes long since forgotten and perhaps expiated by years of remorse and sincere reform.”Footnote ⁴⁸ Well more than a century later, the Eleventh Circuit wrote in a related sense that “timeliness … boundaries … circumscribe the breadth of public scrutiny to [an] incident of public interest” and that, therefore, the nude photographs of a murder victim taken more than twenty years before the crime had no relation to news coverage of it; those photos were not related in time, the court held,Footnote ⁴⁹ and any other holding would “debase[] the very concept of a right to privacy.”

This concept made headlines when the European Court of Justice ordered an accurate but ten-year-old newspaper article about a man’s debt proceedings de-indexed so that it would be much more difficult to find during an internet search.Footnote ⁵⁰ The court was especially worried about protecting the man’s attempt to turn his life around more fully. Besides, it reasoned, the news article was “inadequate,” “no longer relevant,” and “excessive” in relation to “the light of the time that has elapsed.”

Somewhat in line with that, a number of recent court decisions in the United States contain similar concerns about older criminal information. In 2021, a federal judge in Pennsylvania ordered the website Mugshots.com to pay $150,000 to a former arrestee whose criminal record had been expunged.Footnote ⁵¹ The website’s worldwide use of the man’s mug shot from two decades before had significantly harmed his reputation among family and friends, the judge wrote, and instructed that the mug shot be removed.Footnote ⁵² “[I]n an age when it is a widespread practice for employers to conduct an online search on the background of prospective employees,” the court reasoned, “any job application by [the man] would most likely entail revelation of the information posted about him online.”Footnote ⁵³

In another case from six years before, a state court similarly ordered older criminal information be taken down.Footnote ⁵⁴ Details about the man’s criminal past, the court wrote, “are likely not newsworthy twenty-five years after the fact.”Footnote ⁵⁵

Other modern courts have suggested that the release of private individuals’ criminal records would be especially forbidden because “there might be little to offset the risk of adverse collateral consequences arising some such disclosure”;Footnote ⁵⁶ that police photo arrays should not be made public because “a significant privacy interest warrants protecting the identities of third parties included in the photo lineups” because the images convey the individuals’ guilt;Footnote ⁵⁷ that people featured on a website that charged money to have the mug shots removed had valid claims for misappropriation;Footnote ⁵⁸ and that a person arrested on a misdemeanor charge whose booking photo appeared on the internet had a potential privacy claim against the sheriff for making the image public.Footnote ⁵⁹

And then, in 2018, the Eleventh Circuit found police liable for allowing cameras from the reality show The First 48 to record images of an arrestee without his consent. The filming and broadcast constituted a seizure of the man’s image, the court held, and violated his right to privacy; showing him walking down a police hallway and later being interrogated by police served no legitimate purpose. Thus, the authorities had violated the arrestee’s constitutional rights and the court upheld his Section 1983 claim.Footnote ⁶⁰

In the case involving the sheriff’s release of a mug shot, one decided in 2020, the plaintiff had relied in part on what the court said were “several recent federal cases analyzing the issue and determining that arrestees generally have rights to privacy with respect to their booking photos.”Footnote ⁶¹ Those cases helped support the plaintiff’s argument that Texas state law prevented the release of mug shots as government information “considered to be confidential by law.”Footnote ⁶²

A small number of states today limit access to booking photographs even more clearly. In Illinois, for example, one of the statutory exemptions to the freedom-of-information law says this:

If certain mug shots are no longer published online or otherwise, those legislators have reasoned, mocking websites will no longer be able to access them. Other states have passed laws that criminalize the practice of forcing individuals to pay for the removal of their mug shots from websites.Footnote ⁶⁴

9.3 A Shift in Journalism Too

In the 2010s, the Chicago Tribune would routinely run a feature on its website. It was called “Mugs in the News” and it highlighted 100 people arrested by police throughout the Chicagoland area the day before. The crimes included the sensational, like rape and murder, but also the more mundane, like theft and burglary.Footnote ⁶⁵

Then, in 2021, the Tribune announced a major change, a shift to what it called “compassionate coverage.” Not only had it decided not to publish its “Mugs in the News” feature anymore, it had decided to cut back significantly on the use of mug shots in its reporting, period. “Part of this is just plain fairness,” editors wrote. “A lot of people” featured in such mug shots “will end up not being convicted,” will be found not guilty, or will plead to lesser charges. Moreover, the use of such images “might reinforce racial stereotypes and amount to punitive coverage of people who enter the criminal justice system.”Footnote ⁶⁶

Even more relevant to what might be considered a right for one’s criminal past to be forgotten, Tribune editors suggested they were working to remove most of the mug shots from old news stories that are now accessible through archival databases. “[W]e have been removing some mug shots from older stories for months now,” they wrote, and would continue to “remove many of them as we come upon them.” Decisions to publish versus not to publish, to take down or leave up, would be based on “high news value,” the editors explained, including high-profile crimes, those involving a public figure, and those with some public-safety purpose.Footnote ⁶⁷

“The default,” editors explained in 2021, was “not to use a mug shot.”Footnote ⁶⁸

The Chicago Tribune is not the only newspaper to decide to do such a thing. The Marshall Project, a nonprofit news organization with the criminal justice system as its beat, suggested in 2020 that “faced with questions about the lasting impact of putting these photos on the internet, where they live forever, media outlets are increasingly doing away with the galleries of people on the worse days of their lives.”Footnote ⁶⁹

“Legally, it’s public record,” one reporter explained, “but legal is not always right.”Footnote ⁷⁰

9.4 The Future of Mug Shots and Other Online Criminal Arrest Information

That reporter who suggested in 2020 that mug shots were public records and that, therefore, publishers could publish them without concern for legal liability was mostly correct. Today, despite a growing number of court decisions and legislative enactments that hold otherwise in certain cases, in many places and in many situations, a mug shot is indeed a public record, and a news publisher need not worry about the legality of publishing it, especially in a decidedly newsworthy case.

But, given the shift toward some level of privacy in mug shots in law and in journalism, there is a strong likelihood that privacy protections for arrest information including mug shots will continue to increase.

This is for a couple of reasons. The first is that some legislatures and some courts have already put mug-shot-related privacy protections in place. The second reason is that the law’s definition of privacy responds to society’s definition of privacy. Consider the language from the Second Restatement of Torts for its “Publicity Given to Private Life,” which identifies those times in which certain information is considered too private to be revealed. There, the Restatement provision reads, the “protection afforded to the plaintiff’s interest in his privacy must be relative to the customs of the time and place” and to “the habits of his neighbors and fellow citizens.”Footnote ⁷¹ “It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it” that such an invasion of privacy claim is valid.

Today, it seems that a growing number of judges and journalists agree that such information about one’s criminal past or present should be protected. Public sentiment is growing too. In 2020, 85 percent of Americans supported some aspect of a “right to be forgotten” and “more than half (56%) [said] all Americans should have the right to have negative media coverage about themselves removed from public search results.” In the meantime, and relatedly, a “smaller share of Americans – though still about four-in-ten (39%) – think the same right should be applied to data collected by law enforcement, such as criminal records or mugshots.”Footnote ⁷²

This suggests a growing sensibility that seemingly would protect certain criminal histories, and it means that one day, a reporter who suggests that publishers need not worry about publishing such materials because they are public documents could very well be wrong.

It’s true that the Supreme Court’s older jurisprudence, including Florida Star v. B.J.F.,Footnote ⁷³ suggests that it would be unconstitutional to punish the publication of truthful information of public record – but the Justices explained back then that even that jurisprudence has its limits. “We do not hold that truthful publication is automatically constitutionally protected, or that there is no zone of personal privacy within which the State may protect the individual from intrusion by the press, or even that a State may never punish publication of the name of a victim of a sexual offense,” the Court wrote in Florida Star, because there is “sensitivity and significance” in privacy interests that are as profound as the interest in a free press.

9.5 Conclusion

If journalism continues its trend of avoiding the use of mug shots and pushing for the removal of mug shots from its news databases, the only publications making use of mug shots could well be those that use them mostly to mock. If so, additional courts and additional legislatures – and additional members of the public – will surely continue to demand greater protection for mug shots on privacy grounds. And that means that at some point in the future, probably sooner rather than later, there will be no more public release of booking photographs of anyone, except perhaps in those cases in which an arrestee becomes an escapee or is wanted in some other way.

There is additional support in the Second Restatement. The Restatement authors suggest that “if the record is one not open to public inspection … it is not public, and there is an invasion of privacy when it is made so.” And that means that the society shift toward privacy in mug shots could well expand into liability for publication of mug shots too.

All this suggests that those early courts that decided mug-shot cases and protected the privacy of those featured more than the publication had surprisingly modern sensibilities. Today, all the more, as even those early courts suggested, the circulation of mug shots cannot be undone.

10.1 Introduction

To some, this typo-ridden remark might sound banal. We know that our data drifts around online, with digital flotsam and jetsam washing up sporadically on different websites across the internet. Surveillance has been so normalized that, these days, many people aren’t distressed when their information appears in a Google search, even if they sometimes fret about their privacy in other settings.

But this remark is not a throwaway line by a disgruntled netizen. No. It’s a boast by a stalker, Liam Youens, who went online to find his victim, Amy Boyer. Youens traced Boyer after buying her work address from a data broker – a company that traffics information about people for profit. Youens documented his search for Boyer’s whereabouts on his personal website: “I found an internet site to do that, and to my surprize everything else under the Sun. Most importantly: her current employment.”Footnote ² After he asked the broker for more information, he just had to bide his time. “I’m waiting for the results,” he wrote ominously, not long before shooting Boyer dead at work.Footnote ³

Data brokers fuel abuse by sharing people’s information and thwarting their obscurity. The value of obscurity, though sometimes overlooked in privacy discourse, rests on the idea that “information is safe – at least to some degree – when it is hard to obtain or understand.”Footnote ⁴ Brokers hinder obscurity by making it easier and likelier to find or fathom information about people. This act of foiling obscurity, in turn, facilitates interpersonal abuse. The physical violence suffered by Amy Boyer is but one kind of abuse; people also face stalking, harassment, doxing, defamation, fraud, sextortion, and nonconsensual sharing of their intimate images.Footnote ⁵

This chapter explores the phenomenon of brokered abuse: the ways that data brokerage enables and exacerbates interpersonal abuse. The harms of brokered abuse go beyond the fact that brokers make it easier to surveil people and expose them to physical, psychological, financial, and reputational harms. In addition, people must beg every single broker to conceal their information from thousands of separate databases, over and over again, with little or no legal recourse if brokers reject their efforts to regain some obscurity. Due partly to existing laws, this whack-a-mole burden of repeatedly pleading to obscure data can trigger trauma and distress. Only by grasping this fuller scope of brokered abuse can we begin to regulate it.Footnote ⁶

This chapter splits into three sections. Section 10.2 introduces the broker industry before Section 10.3 reveals how the law largely fails to address, and is even complicit in, key features of brokered abuse. Section 10.4 then explores the harms stemming from brokered abuse in order to lay some foundations for regulating them.

10.2 Data Brokers as Information Traffickers

Data brokerage is a multibillion-dollar industry.Footnote ⁷ Thousands of companies form a sprawling network of brokers that buy, sell, trade, and license gigabytes of human information. Though brokers’ business models vary, their power and profit fundamentally stem from trafficking information about people.Footnote ⁸

For the most part, brokers buy information from other companies and gather it from government records and public websites.Footnote ⁹ From there, brokers build profiles including data like a person’s name, aliases, photos, gender, birthdate, citizenship, religion, addresses, phone numbers, social-media accounts, email addresses, Social Security number, employers, schools, families, cohabitants, purchases, health conditions, and hobbies. These data dossiers are then sold for a fee or even shared for “free” thanks to the ads adorning broker websites.Footnote ¹⁰

There are, to be fair, some benefits tied to the broker industry.Footnote ¹¹ Transparency and accessibility come from publicizing information online, including data drawn from public records. Journalists, activists, academics, and the general public can garner insights from this information.Footnote ¹² Indeed, a person might even evade interpersonal abuse or other ills after discovering an acquaintance’s restraining order or criminal record through a broker. Though this kind of data is often accessible in other ways, a Google search is easier, faster, and cheaper than a trip to the county courthouse.Footnote ¹³

Some people also use brokers to locate heirs or reconnect with long-lost friends and family. Others might rely on brokered data to inform their hiring decisions. Some companies rely on brokers in order to collect debts or discover fraud, corroborating information given to them by a customer or client. And brokers can even assist the legal system, such as when class-action awards are being distributed. These perks cannot be ignored, but we should be wary of their value being exaggerated.

Another set of purported benefits relate to consumers, largely stemming from how businesses use brokered data. In particular, human information fuels the datasets and algorithms that help companies target ads and develop products. The resulting corporate revenue could, at least theoretically, yield cheaper or better services for consumers. I’m skeptical that this species of informational capitalism is in the public’s interest,Footnote ¹⁴ but debunking this defense of data brokerage is not essential. Even if the commercial benefits are substantial, we should not scoff at the serious harms tied to the broker industry.

Though there are many harmful facets of data brokerage, I’ll focus here on only one: how brokers enable and exacerbate interpersonal abuse. Most directly, brokers’ dossiers can be treasure troves for abusers, who can plunder them for information with just a few clicks and bucks. In Amy Boyer’s case, Youens paid a broker $45 for her Social Security number, $30 for her home address, and $109 for her work address.Footnote ¹⁵ These sums might already seem trifling given the vile result, but many brokers offer much more for far less. In 2013, for instance, a stalker bought Judge Timothy Corrigan’s home address for less than $2 and later shot bullets at his house, missing the judge’s head by a mere 1.6 inches.Footnote ¹⁶

These jarring anecdotes tell part of the story of how brokers enable and exacerbate abuse, but the phenomenon needs more interrogation to show its full scope. To do so, we must unpack how the law can be ineffective and even injurious when responding to brokered abuse.

10.3 The Law’s Role in Brokered Abuse

There are at least four common regulatory responses to brokered abuse: prohibiting abusive acts, mandating broker transparency, limiting data collection, and restricting data disclosure. Though each measure has some merit, none will suffice. Worse still, recent privacy laws can even inadvertently inflict psychological harms on people seeking to recover from abuse. Let us explore how.

10.4 The Harms of Brokered Abuse

With this legal survey in mind, let us return to the matter of harms: How do brokers enable and exacerbate abuse? How is the law inadequate and complicit? And how might legal procedures even contribute toward a person’s suffering?

To answer these questions, I return to obscurity – a notion of privacy concerned with “the difficulty and probability of discovering or understanding information.”Footnote ³⁷ As Woodrow Hartzog and Evan Selinger have observed, obscurity can be a “protective state” that serves valuable privacy-dependent goals like “autonomy, self-fulfillment, socialization, and relative freedom from the abuse of power.”Footnote ³⁸ Understanding the full scope of brokered abuse requires parsing how data brokerage, including its surrounding legal constructs, undermines obscurity. As we’ll see, brokered abuse encompasses an array of intrinsic and extrinsic harms, all of which implicate a person’s obscurity.

10.5 Conclusion

Data brokers are abuse enablers. By sharing people’s information, brokers thwart obscurity, stimulate surveillance, and ultimately enable interpersonal abuse. This chapter has canvassed four regulatory responses to brokered abuse. Though these existing measures have some merit, none is adequate, and some laws can even make matters worse. Put simply, the current legal landscape is neither effective nor empathetic.

Of particular and yet underappreciated concern, the prevailing broker-by-broker approach to regaining obscurity likely causes victims’ trauma by forcing them to engage repeatedly with their abuse and vulnerability. The flaws of this obscurity process also leave people vulnerable to serious physical, psychological, financial, and reputational harms. Regulating brokered abuse should be a priority for both law-makers and technologists.