The age of defamation

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As the second defamation trial between E. Jean Carroll and Donald Trump wraps up, Americans may be wondering, “Why are there so many defamation cases in the news?”

Defamation was everywhere in 2023. Setting the stage for the “year of defamation,” Amber Heard and Johnny Depp settled their crossclaims for defamation in December of 2022 after a verdict in Depp’s favor.

The new year got off to a bang in January 2023, when singer Cardi B obtained a verdict of $4 million in a lawsuit against a blogger who claimed she had contracted herpes and had been a prostitute.

The lawsuit by election-tech firm Dominion against Fox News was perhaps the most notable defamation case last year, ending in a $787 million settlement in April over false claims of fraud.

In Wausau, Wis., a local businessman who is now a Republican state senator sued an online news source after it reported that he used a homophobic slur in a county board meeting discussion.

In September, the Minnesota Supreme Court held that discussion of the MeToo movement was protected by the First Amendment.

In October, a bankruptcy judge ruled that Alex Jones could not use personal bankruptcy to avoid paying $1.1 billion in defamation damages related to his lies about the Sandy Hook Elementary School shooting.

In a year when artificial intelligence burst on the scene, a radio host also sued Open AI for allegedly false statements generated by ChatGPT.

Finally, 2023 concluded with a $148 million verdict against America’s mayor, Rudy Giuliani, in December, after he falsely accused two poll workers in Georgia of ballot tampering.

What do these cases tell us about contemporary America? The days when the morning newspaper and national nightly news programs provided the country with a consensus viewpoint on world and national events are over. Political polarization has created siloed news consumption.

Worse, many Americans get their “news” from individuals posting on social media who have no idea what they are talking about. As a practical matter, social media leads to more statements, true and false, being shared across the internet in a way that can be shared, copied and sourced. More statements mean more defamation and more defamation means more litigation.

And, despite the abundance of well-publicized lawsuits, many users of social media continue to refuse to believe that there could ever be consequences to what they say online.

Some would say the rise in defamation claims may be related to national zeitgeist of resentment and thin-skinned, self-righteous anger in America. Others would say defamation claims have been weaponized in a way that chills free speech. Perhaps the explanation for this trend is as simple as the coarsening of political discourse and more frequent and more brazen lies made by politicians.

Regardless, one of the few things that still seems to unite red and blue Americans is faith that the U.S. legal system will vindicate their position. Americans have always been litigious. But in the current post-truth, fake news environment courts sometimes end up serving as the last bastion to determine what is false and what is true, while at the same time balancing the protections of the First Amendment.

V. John Ella is a Minnesota defamation attorney.