Journalists think about libel laws a lot. Most new reporters get the standard talk from a lawyer: Obviously, don’t say things that are untrue. Less obviously, don’t say things that you think are probably true but depend on a source who won’t back you up if you get sued. News organizations do a lot of verbal gymnastics to stay within the lines—sometimes to a fault. That’s one reason why they reflexively say “alleged gunman” even when a shooting took place in view of 50 witnesses. Yet the idea has taken hold—on both Right and Left—that media organizations are getting away with spreading rumors without consequences. Liberals want to hold Twitter and Facebook accountable. Conservatives want to “open up the libel laws” and wrestle down CNN. And this week both found an ally on the Supreme Court (see Talking Points), with Clarence Thomas writing that the court should revisit New York Times Co. v. Sullivan, the key decision that gave the press robust protection against lawsuits.
Thomas’ call comes in the case of Kathrine McKee, an actress who described her rape by the comedian Bill Cosby in 1974, then sued Cosby’s lawyers for saying that she was lying. It’s not surprising that McKee would evoke sympathy from both Left and Right. She was, after all, twice victimized, by Cosby and then again by his lawyers. Yet at this point, it’s hard to argue that McKee’s reputation needs to be restored. Bill Cosby has reported to prison, his reputation deservedly in ruins. And there are few journalists indeed who doubt the word of his victims. We don’t need a libel suit to prove that Cosby was a predator. The reality of libel suits is that they rarely restore a reputation that has been unfairly wrecked. They are most powerful in the hands of those who have already won in the court of public opinion—many of whom are sure to be far less sympathetic than McKee.