Speech torts are civil claims in lawsuits that allege misconduct based on speech. The most well-known speech tort is called defamation. Defamation occurs when another person spreads falsehoods about you that damage your reputation. It can (and often does) destroy businesses, relationships and careers.
Defamation Enjoys Too Much Legal Protection
From the founding of the United States until 1964, defamation was completely unprotected by the First Amendment, and “the law of defamation was almost exclusively the business of state courts and legislatures.” McKee v. Cosby, 586 U.S. 1172, 1173 (2019) (Thomas, J., concurring). But in 1964, in a case called New York Times Co. v. Sullivan, the Supreme Court “federalized major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in most of the 50 States.” Id.
In Sullivan, the Supreme Court held that the First and Fourteenth Amendments “require a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964). Quoting an earlier decision from the Kansas Supreme Court, the Sullivan court noted that, “this privilege extends to a great variety of subjects and includes matters of public concern, public men, and candidates for office.” Id. Indeed, in the years since Sullivan, the Supreme Court explicitly expanded the privilege to apply not just to government officials, but to all public figures.
Obviously, this line of precedents protects and encourages a great deal of defamatory falsehood and disinformation. But with the advent of social media, there has been increased talk among jurists and the press about whether Sullivan may be revisited by the Supreme Court, and potentially overturned. Meanwhile, within the strictures of Sullivan and its progeny, both public figures and private citizens are increasingly turning to attorneys for recourse against defamatory falsehood.
Over the past few years, journalists have been raising alarm bells about this, accusing defamation attorneys (and Supreme Court justices) of colluding with powerful forces to stifle freedom of speech, and freedom of the press. For example, in a 2025 book called Murder the Truth, journalist David Enrich claims that lawsuits and threats of litigation are used to intimidate editors, publishers, and reporters, fostering an environment of self-censorship. The problem with this perspective is that it’s at odds with reality.
The Media Is Not the Little Guy
Major publishers and broadcasters are among the most powerful institutions in the world, and they enjoy massive unchecked power to destroy reputations and livelihoods.Indeed, quite often it is the media that is bullying the little guy.
At LATE NIGHT LAW®, we fight for freedom of speech by litigating First Amendment claims. But we also believe that defamation law provides important recourse to victims of reputational attacks, especially in the era of social media. As the late Supreme Court Justice Joseph Story once said,
There is a good deal of loose reasoning on the subject of the liberty of the press, as if its inviolability were constitutionally such that… it implied a despotic sovereignty to do every sort of wrong, without the slightest accountability to public or private justice. Such a notion is too extravagant to be held by any sound constitutional lawyer.
Freedom of speech and of the press are among the highest of our American values. But we should keep in mind that the real purpose of those rights is the pursuit of truth. As Thomas Jefferson said, “Reason and free inquiry are the only effectual agents against error.” But reason is fettered when public lying becomes endemic. Free inquiry becomes impossible when the public discourse is inundated with cynical disinformation.
Americans Deserve Greater Recourse Against Defamation
Today 54% of Americans get their news from social media. For influencers on these platforms “outrage is the key to virality.” Researchers at MIT have found that fake news can spread up to 10 times faster than true reporting on social media. Demagoguery and snake-oil are everywhere. Today we live in a toxic environment where out-of-context reporting spreads like wildfire and can unfairly destroy a person’s hard-earned reputation in just hours.
The fact is that defamation does not further the search for truth. As Justice Kagan said during her confirmation hearing, “Reputational harm is real harm, and the legal system should not pretend that it is not.” Robust civil liability for defamation encourages truthfulness in public discourse, and discourages dishonesty. In the era of social media, incentives around speech are sorely in need of reform. Making it easier to get away with defamation isn’t the answer.
Late Night Law® is a dedicated defamation, privacy and social media law firm. If you are the target of doxxing, defamation or cyberstalking in New Mexico, in Washington, or in Texas, contact us at (505) 225-2623 to schedule a free consultation with a defamation attorney.
This article is not legal advice, and does not create an attorney-client relationship between the reader and Late Night Law. Please consult an attorney for individualized advice if you have a legal matter.
All text content © Late Night Law 2026.