On Sunday, CBS launched another attack on a conservative politician based on lies when “60 Minutes” peddled a conspiracy theory targeting Florida Republican Gov. Ron DeSantis. If wise, DeSantis will use this latest attack to launch a counteroffensive against the corrupt media, by suing for defamation and challenging the standard for liability established by the Supreme Court in New York Times v. Sullivan.
As The Federalist’s Mollie Hemingway detailed yesterday, “60 Minutes” ignored the real scandals engulfing Democratic governors, such as New York’s Andrew Cuomo and California’s Gavin Newsom, to concoct a two-prong “pay to play” falsehood concerning the Republican DeSantis.
“Reporter” Sharyn Alfonsi launched the latest fake-news scandal last month by “reporting” from Palm Beach, Florida that DeSantis was prioritizing vaccination for seniors “because Florida seniors are more likely to be wealthy and white than the rest of the population, or because they’re more likely to vote for him.” The second arm of the conspiracy theory ran that “DeSantis had personally rammed through a decision to use Publix grocery stores for vaccine distribution” because of campaign contributions from the grocery store chain.
Hemingway exposed the facts that establish the longtime news outlet’s segment was nothing but a libelous hit on DeSantis. So what’s DeSantis to do? Sue!
Conservative politicians, like all conservatives, must make clear that they’re “not gonna take it anymore.” “60 Minutes’s” recent foray into falsehoods provides the perfect vehicle for DeSantis to pounce and prove that Democrat propagandists posing as the press deserve no heightened protection for reporting on public figures.
After all, it is the nearly insurmountable burden the Supreme Court established in New York Times v. Sullivan for public figures to prevail in defamation cases that laid the foundation for the collapse of the respectable press. In Sullivan, the high court created the now well-known “actual malice” standard, which requires a public figure in a defamation case to prove that the defendant either knew a statement was false or acted with reckless disregard for its truth.
With the threat of financial consequences no longer in play, personal integrity and professional ethics remained the only check on journalists. While those qualities may have delayed the ruin of our free press, neither appear enough any longer to restrain a media rabid with leftist political ideology.
Thus, as Judge Laurence Silberman recently said in a dissent he penned in a defamation case in the D.C. Circuit Court of Appeals, “new considerations have arisen over the last 50 years that make the New York Times decision . . . a threat to American Democracy.” So “It must go.”
A mere three weeks after Silberman published these words, CBS has presented conservatives the perfect vehicle in the “60 Minutes” segment libeling DeSantis. DeSantis should sue for libel and push the Supreme Court to overturn New York Times v. Sullivan. As Silberman noted in his dissent, Justice Clarence Thomas has already called for its reversal:
Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication. As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone. (citations omitted).
A lawsuit by DeSantis would provide the Supreme Court the ideal factual backdrop for reversing New York Times v. Sullivan, for all of the reasons Silberman highlighted in his dissent. That precedent has “allowed the press to cast false aspersions on public figures with near impunity,” and as the “60 Minutes” hit piece proved, this is not a “two-sided phenomenon.” Rather, CBS’s false report slurred a popular Republican governor, while leaving unscathed the Democratic media darlings with true COVID scandals.
Further, while the Supreme Court in New York Times reasoned that First Amendment interests justified the intrusion into the state tort law of defamation, as Judge Silberman stressed “when the media has proven its willingness—if not eagerness—to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.”
DeSantis would also be the ideal man to present this case, both to the Supreme Court and to the American public. He has perfected the pushback, countering false reports and narratives with details devoid of personal attacks. And his conservative record, including his handling of COVID, his executive order countering the concept of a vaccine passport, his expansion of school choice, and his banning of critical race theory in schools, will ensure the base has his back if he launches a much-needed counteroffensive on the corrupt press.
Of course, the “60 Minutes” report was so outrageous, DeSantis might not even need the Supreme Court to overturn New York Times v. Sullivan, as the Florida governor could potentially prevail even under the nearly impossible actual malice standard.
A statement from the Democrat Mayor of Palm Beach County provides solid evidence that CBS acted with intent. “The reporting was not just based on bad information,” Dave Kerner wrote, “it was intentionally false.” “I know this,” the young mayor added, “because I offered to provide my insight into Palm Beach County’s vaccination efforts and 60 minutes declined.”
“60 Minutes” knew, Kerner maintained, that his administration had requested the governor expand the state’s partnership with Publix to Palm Beach County, contrary to “60 Minutes’s” conspiracy claim that tied Publix’s selection to campaign contributions. “They had that information, and they left it out because it kneecaps their narrative.”
On Tucker Carlson Monday night, DeSantis seemed to be moving in this direction. He specifically said that “60 Minutes” had behaved in a malicious way: “It was done with malicious intent and a reckless disregard for the truth.”
Legally, though, DeSantis can pursue a two-pronged attack, seeking to recover under the current actual malice standard, while priming the case for appeal to the Supreme Court. Conservatives will champion this approach, even if the media doesn’t—or, rather, especially if the media doesn’t.