Scripps, the parent company of Discovery, won a defamation suit filed in Sacramento, California, earlier this month. A contractor on the show “Windy City Rehab” sued the company claiming the show falsely portrayed him as the “series’ villain.” However, the Sacramento judge ruled that the producers of the show were covered by the First Amendment’s free speech protections and was unable to find that Scripps acted with malice.

Thomas Eckhardt, the plaintiff of the lawsuit, claimed that the focus of the show became the breakup of his business relationship with one of the executive producers of the show, Alison Gramenos. He claimed he became the villain when the two began to see an uptick in issues such as unpaid workers, taxes, and improper use of loan funds. Those issues, according to the lawsuit, were often pinned on Eckhardt to portray him as the culprit.

Under California statutes and federal law, defamation falls under two categories: libel and slander. Libel is a type of defamation that is any “false and unprivileged” representation of an individual that generally causes that person to be “shunned or avoided, or which tends to injure him in his occupation.” In this case, Eckhardt is claiming he is a victim of trade libel or defamation that hurts his and his company’s reputation.

A few standards are required to allege defamation, however, and the most difficult and important standard for a victim to prove is the “actual malice rule” which coincides with the protection of free speech under the First Amendment. In 1964, the United States Supreme Court constitutionalized libel law in the case of New York Times Co v. Sullivan. Those suing for libel must prove through convincing evidence that the perpetrator acted with “actual malice,” or acted with “knowledge that it was false or with reckless disregard of whether it was false or not.” The "actual malice" standard can apply when the subject is a public official or public figure or when the subject is a matter of public concern.

As libel cases have evolved and the Supreme Court has instituted differences between public and private figures, another important issue when pursuing a defamation case is to determine the status of a plaintiff. Determining whether the plaintiff is a public figure or a private individual will dictate the type of evidence needed to prove the case.

As a public figure, Eckhardt has the burden to prove through “clear and convincing evidence” that the media acted in such a way that he is owed compensatory as well as punitive damages. However, this is not the case for private figures. The Supreme Court ruled in 1974 in the case Gertz v. Robert Welch, Inc., that the actual malice rule is not required to award compensatory damages in a case for private individuals.

The First Amendment protection often clashes with defamation laws. Defamation is considered a “low” value speech under the First Amendment protections and is very narrowly defined, requiring a high level of proof and evidence. While “Congress shall make no law… abridging the freedom of speech,” defamation laws can create a “chilling effect” on individuals or companies that won’t publish out of fear of being sued for defamation.

The malice standard for proving defamation has recently come under speculation by the Supreme Court. In a 2021 Case, Berisha v. Lawson, Supreme Court Justices Clarence Thomas and Neil Gorsuch wrote separately that the Court should review the decision of New York Times Co. v. Sullivan because of the actual malice standard. Gorsuch reasoned that the present-day media world is completely different than in 1964 when the case was heard. Berisha, on the other hand, argued that there is a “lack of historical support for [the Supreme] Court’s actual-malice requirement.”