Libel involves several criteria. In order to be libelous, claims have to be both false and defamatory, and, when they involve a public figure, they have to be made with “actual malice” or “reckless disregard for the truth.” As a longtime newspaper editor and columnist, I have been on both sides of this: threatened with libel suits over accurate and honest journalism as a bullying tactic, and subjected to defamation by others.
My view is that our libel laws are pretty good, but civil proceedings have the same problem as criminal proceedings, sometimes summarized by the maxim: “You can beat the rap, but you can’t beat the ride.” It costs money to pursue a legitimate libel case, and it costs money to defend against an illegitimate one.
Because his was a high-profile case, Sandmann was able to get first-rate legal representation without being obliged to spend a tremendous amount of money upfront. The Washington Post is owned by the world’s wealthiest man, which makes suing it more attractive. But other victims of defamation find it very difficult and financially risky to pursue justice. It is time for conservatives to put together a libel effort parallel to the efforts that have been made on behalf of gun rights and religious liberties, a kind of pro-bono defamation bar. The only way to get the Washington Post or CNN to stop the abuse is to make it cost them dearly.