Media Law: A Roundup of Major Decisions in 2024

Last year was a mixed bag for media companies in the courts.

As we prepare for a productive new year, we took time to consider key media law decisions in 2024. Here is our roundup.

Several federal appellate cases upheld First Amendment rights:

• In Texas Tribune v. Caldwell County, the Fifth Circuit upheld an injunction prohibiting a county from closing magistrate proceedings to the public. The court found that the policy infringed on the right of access to judicial proceedings implicit in the First Amendment. The Fifth Circuit applied the “experience and logic” test, determining that historically, pretrial proceedings have been open to the public (experience) and that public access plays a significant role in ensuring fairness and accuracy in the judicial process (logic).
• In Favre v. Sharpe, a team from Phelps secured a favorable Fifth Circuit decision upholding dismissal of a defamation lawsuit brought by former NFL quarterback Brett Favre against former NFL tight end and sports personality Shannon Sharpe. The court found that Sharpe's comments on a sports debate show, saying that Favre “stole money from people who really needed that money,” were non-actionable opinions based on publicly disclosed facts.
• In Franchini v. Bangor Publishing, the First Circuit affirmed summary judgment for several news organizations and reporters over articles describing malpractice allegations against the former chief of podiatry at a Veteran Affairs hospital. In his suit for defamation, the district court held that the podiatrist was a limited-purpose public figure, in part because he voluntarily injected himself into the public controversy by creating a blog to refute his critics. The First Circuit held that reporter’s a decision not to interview other sources suggested by the plaintiff did not establish actual malice.
• In Berge v. School Committee, the First Circuit ruled that qualified immunity did not protect public school officials who threatened a citizen-journalist and school parent with wiretap violations for exercising his First Amendment rights by openly filming and posting the video on social media. The First Circuit held that no sensible official could believe that threatening the citizen-journalist was not a burden on his First Amendment right to publish on a matter of public concern.
• In Olivet University v. Newsweek, the Second Circuit affirmed dismissal of a defamation suit based on substantial truth and New York’s Fair Report Privilege. The plaintiff alleged Newsweek defamed it by reporting that it pleaded guilty to money laundering, when it had pleaded guilty to falsification of business records and conspiracy. The court found that the substance of the report would not have a different effect on the mind of the reader than the pleaded truth, and that the suit was independently barred by the Fair Report Privilege, for publication of a fair and true report of a judicial proceeding.

In contrast, one circuit court case appeared to erode the “substantial truth” defense:

• In Veritas v. CNN, the Eleventh Circuit, applying New York law, reversed the dismissal of Project Veritas’s defamation suit against CNN. Twitter (now X) had suspended Veritas for violating its policy on doxing, while CNN reported that Veritas violated Twitter's policy on disinformation. The district court concluded that Veritas’s reputation would have been similarly harmed had CNN reported the pleaded truth. The Eleventh Circuit held that that the district court should not have weighed reputational harm instead of comparing the meaning of the defamatory statements with the pleaded truth. The case contrasts with the Second Circuit’s affirmation of the substantial truth doctrine based on reputational harm in Olivet University v. Newsweek.

The U.S. Supreme Court confirmed the First Amendment protects against government coercion to suppress speech:

• In National Rifle Ass’n v. Vullo, the Supreme Court reaffirmed that government officials cannot coerce private parties, to punish or suppress views that they don’t like. The NRA alleged that the superintendent of the New York Department of Financial Services coerced financial institutions to sever ties with the group by threatening enforcement actions. The case highlights the constitutional concerns surrounding efforts by public officials to indirectly suppress speech by pressuring private entities.

The complexity of applying First Amendment law to social media was on full display:

• In Moody v. NetChoice, the Supreme Court took up Fifth and Eleventh Circuit decisions on new laws in Texas and Florida that restrict social media companies’ ability to moderate user content. The Court vacated and remanded the circuit court decisions, emphasizing the need to properly consider the facial challenges to the state laws. The court agreed with the Eleventh Circuit that platforms' content moderation practices are expressive and protected by the First Amendment, rejecting the Fifth Circuit’s finding that Texas was likely to succeed in enforcing its law, given Texas’s stated interest in achieving more ideological balance.
• In Anderson v. TikTok, the Third Circuit held that Section 230 immunity did not shield TikTok from claims of strict products liability and negligence. The plaintiff alleged that TikTok's algorithm was defectively designed to promote harmful content, after her 10-year-old daughter unintentionally hung herself attempting the "Blackout Challenge" that allegedly encouraged viewers to record themselves self-asphyxiating. Citing Moody v. NetChoice’s holding that social media curated feeds are expressive content protected by the First Amendment, the Third Circuit ruled that the algorithm constitutes TikTok's own expressive activity and thus is not protected by Section 230, which immunizes only publishers of third-party content.
• In Lindke v. Freed, the Supreme Court fashioned a new test to determine whether public officials deleting users’ comments on social media and blocking individuals constitutes state action (and therefore, impermissible censorship). Acknowledging different approaches by the circuit courts of appeals, the Court stated that 1) officials must have actual authority to speak on behalf of the state and 2) they must purport to exercise that authority when they speak on social media. The Court demoted the focus of some circuits on the appearance and function of the social media activity, holding these are relevant at the second step, but cannot make up for a lack of state authority. The Court declined to apply its new standard to the two cases before it, instead remanding them to the lower courts.

Please contact Elana Beiser, Andrew W. Coffman, Ashley J. Heilprin or any member of the Phelps Media and First Amendment Law team if you have questions or need advice or guidance.