Most sports movies are some version of an underdog story. Rarely do such films climax with the well-funded, dynastic, season-long favorites winning another title behind world-class performances of their all-star players. A fair number of courtroom dramas tap the same trope.
Last week, a real-life federal courtroom in Alabama was the scene of a historic underdog victory that combines sport and law.
Former University of Alabama basketball player Kai Spears broke The New York Times’ 50-year win streak of defending defamation cases, in a case stemming from an NYT article in 2023 that falsely placed Spears at the scene of a fatal shooting.
On top of the massive advantages in financial and legal resources that The New York Times brought into the courtroom, they have the prestige of being the “newspaper of record,” the “Gray Lady.” They are also “synonymous with the standard for proving defamation”: the “actual malice” standard and all that goes with it from the Supreme Court case New York Times v. Sullivan.
I’m at The Federalist today with an article that puts The Times’ loss at trial in the Spears case in the context of the swelling arguments for the Supreme Court to overturn Sullivan:
“The actual malice standard incentivizes negligence. ‘Actual malice’ requires plaintiffs to prove that the media knew the defamatory statement was false, or that the media published it with ‘reckless disregard’ for its veracity. Law professor David Logan identifies ‘the safest legal route’ for the media: ‘publishing without verification… [D]o little or no fact-checking, confident that the more slipshod their investigation, the less likely they are to be guilty of “actual malice.”’
[...]
“The New York Times themselves may have fallen into this trap. At trial, The Times ‘argued that [reporter Billy Witz] had taken reasonable steps to corroborate his source’s information, including approaching Mr. Spears in person.’ A spokesman for The Times said that Witz made an ‘honest mistake,’ which the jury may have felt as a matter of common sense.
“Witz may have shown just enough scrupulosity in his attempt to fact-check to bring the ‘actual malice’ doctrine home to roost.”
One of the most noteworthy and relevant aspects of the case is that Spears managed to evade the tag of “public figure” or “limited-purpose public figure.” Either would have led the court to dismiss his suit under Sullivan’s progeny, Gertz v. Welch.
Spears was a walk-on freshman at the time of the article: he wasn’t a five-star recruit on a six-figure NIL deal whom everyone expected would be a one-and-done player for Bama before entering the NBA draft. But he was a Division I college athlete. An SEC athlete, to be more precise. In a “revenue sport.”
Many courts would have deemed that sufficiently public to stamp out Spears’ suit. Over the weekend, for example, I read a state court ruling that the former general counsel of US Badminton—the head lawyer for a national governing body of 3,200 members and $1.3 million revenue in 2023—was a limited public figure, and thereby dismissed his defamation suit.
If the concept of “public figure” had any validity for the first 20 years after Gertz, it ended with the emergence of the Internet in the 1990s, and is absurd in the age of social media.
“[P]rivate citizens can become ‘public figures’ on social media overnight. Individuals can be deemed ‘famous’ because of their notoriety in certain channels of our now-highly segmented media even as they remain unknown in most… [some] courts have even said that an individual can become a limited purpose public figure simply by defending himself from a defamatory statement,” Justice Neil Gorsuch wrote in Berisha v. Lawson.
Part of what makes a right a right is that the government cannot abridge it without just cause and due process. Under Sullivan and Gertz, you can go to bed—or, in the case of Justine Sacco, board a plane—with your right, and then wake up or disembark without it.
The court in Spears’ case gave him the most backhanded favorable ruling of all time, consistent with Sullivan and Gertz. He maintained his right to reputation because he wasn’t a good enough basketball player or a sufficiently attractive or charismatic social media star to have unwillingly surrendered that right by becoming a “public figure.”
Sullivan diminished the value of every American’s right to reputation by turning it into a highly-conditional privilege for some. How can we take something seriously as a right if the highest court says that any individual’s defense of that right depends on how popular they are at any given moment, in any to-be-determined context?
The combination of Gertz and social media made every American’s right to reputation a function of chance: how viral was your last post?
Assuming, that is, that you hadn’t already unknowingly waived that right by working a job that attracts enough attention.
How much is enough? You’ll find out when you’re defamed.
“The New York Times v. Sullivan decision was a product of its time. The prestige and concentration of corporate media was near its peak, license was replacing liberty in many aspects of society, and the Supreme Court was routinely vying with Congress for the title of ‘legislative branch.’
“As a matter of First Amendment or libel law—or, more broadly, speech rights and the right to reputation—Sullivan was wholly unprecedented and ahistorical.”
Head over to The Federalist to read the whole thing.
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Photo credit: The Redstone Rocket / Flickr.