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By Joe Arney

ABC News absorbed a good deal of flak—especially from the media—for quickly settling a defamation lawsuit brought against the network by Donald Trump. But an expert at the ����������’s College of Media, Communication and Information said it may be a case of playing the long game at a time when moneyed interests are scrambling to undo protections for journalists and First Amendment rights in general.

“These types of lawsuits, where you’re looking for any possible way to attack the media—if the Supreme Court chooses to take on something like this, you could see 60-year-old precedents be overturned,” said Angelica Kalika (PhDJour’19), an assistant teaching professor of journalism at CMCI. “This could fundamentally change how everyone does business, as well as the types of statements we’re allowed to publish and the types of stories we’re allowed to pursue.”

The precedent Kalika is referring to, of course, is the 1964 landmark New York Times v. Sullivan decision, which set a high bar for public figures filing defamation lawsuits. In these cases, plaintiffs must prove “actual malice” on behalf of the media. So, a news organization must have made a knowingly false defamatory statement, or make such a statement with reckless disregard of whether it is false.

“We have billionaires and well-resourced organizations and groups bringing these kinds of libel cases against the press whenever they can,” she said, including Bollea v. Gawker, the case brought by pro wrestler Hulk Hogan over a sex tape partially published by Gawker Media. The case, which was partly financed by tech billionaire Peter Thiel, led to Gawker’s bankruptcy.

“Going to court involves blood, sweat and tears, and it costs a lot of money,” Kalika said. “And with billionaires behind some of these very notable libel cases, there may be a sense that, for ABC, you might weaken future libel defenses by giving higher courts more opportunities to get involved.

“It’s the wild west, in terms of what is going to happen to speech protection in the next few years.”

Course updates in real time

Kalika, who has worked as an independent journalist in addition to her academic career, principally studies alternative media—everything from hyperlocal organizations like the former Colorado Independent, a digital publication that’s now part of the Colorado News Collaborative, to how outlets like TMZ navigate legal and ethical boundaries in producing celebrity journalism.

She also teaches a class, Media Law and Ethics, that is getting fresh updates in the current political climate.

“Now, everyone becomes a broadcaster when they go online—you’re not just liable as part of an organization,” she said. “So you need to be a mini legal scholar, essentially, to consistently keep up with your state and local laws. We can’t go into this thinking legal departments have our back, because a lot of news organizations are getting smaller, and may not have the amount of legal support they need—especially when so much is changing, and will continue to change.”

Why Disney settled

Though she is not involved in the specifics of the ABC News case, Kalika has some ideas around why it settled, beyond the potential disruption to journalism that a case moving through higher courts might trigger.

“First off, we shouldn’t be saying ABC—we should be saying Disney, because that’s who owns it,” said Kalika, who interned for the company’s scripted division as a college student. “Corporations will always act in their best interest, and maybe they have a long-term agenda to not start any trouble with the incoming president,” especially when Disney fought a protracted battle with Florida Republicans over the so-called “Don’t Say Gay” bill.

Kalika also said Disney’s lawyers may have believed Trump’s team could prove actual malice, based on the language George Stephanopoulos used on the air. Stephanopoulos did not use the exact terms set by the jury, misrepresenting the court’s findings—an error that was not corrected in real time.

Whatever the reasoning, the effect on press freedoms is likely to be chilling, especially for the smaller, nonprofit or independent outlet Kalika closely studies. She said it’s crucial that large and well-resourced nonprofits and publications like The New York Times continue to fight to establish, and maintain, press freedoms, because “that protects everyone’s right to free speech. I think that is something we need to always hope, that those who have the means to fight do so.”

“A movement is watching you very closely to see where and how you will trip up,” she said. “It’s a movement of saying, your voice doesn’t matter, your critique of institutional power doesn’t matter, and we’re going to find a way to eliminate your voice. We have to be better at what we do, and smarter and more vigilant. More than ever, we need our press to be that Fourth Estate, to give a voice to the voiceless, and to protect not only the institution, but the concept of free speech in this country.”