Scandal, Defamation, and Near

In Chapter 4 of Freedom for the Thought We Hate, I found the case of Near v. Minnesota to be the most interesting. Reading about the Minnesota “Public Nuisance” law, that shut down “malicious, scandalous, and defamatory newspapers,” reminded me of the tons of malicious, scandalous, and defamatory newspapers I see at CVS every day – did someone say, The National Enquirer?

I decided to look this up further to see if the publication had had issues with defamation or libel in the past, and found that the Enquirer had to issue a formal apology to Judy Sheinlin (Judge Judy), for putting out false statements that she had cheated on her husband and suffered from Alzheimer’s Disease. But that’s just that one I found to be the most ridiculous. They have a long list of lawsuits regarding libel, defamation, and “catch and kill.” Catch and kill was a term I was not familiar with, but found that it essentially means giving sources “hush money” by buying the exclusive rights to a story with no intentions of publishing said story. A prime example of this is Karen McDougal, who claimed to have had an affair with Donald Trump in 2016, and was paid $150,000 by the Enquirer for “exclusive life rights to any relationship she has had with a then-married man.”

So how is the National Enquirer still allowed to publish hundreds of thousands of copies as a news publication if they’re losing defamation lawsuits? To bring this back to the Near case, and the court’s official decision, publications that could possibly contain libel or defamation are allowed to circulate (at least to my knowledge), and be sued at a later date for those reasons. So the Enquirer will continue to circulate, though that circulation has taken quite a dip after the former owner of its parent company, American Media Inc., decided to sell the publication to Hudson Group earlier this year after a lawsuit from Jeff Bezos regarding an alleged blackmail attempt.

I bring up this publication specifically because it is the devil’s advocate for unrestrained press. By protecting the freedom of press, must we protect this press? The Near case has made it very difficult for judges to issue a prior restraint on the press, and if that means that publications like this can publish whatever they want (as long as they know they might be sued over it), then at least it means we have those freedoms of press.