Earlier this month, The Atlantic published a hit piece on FBI Director Kash Patel, accusing him of frequently drinking to excess and often being absent from work and unreachable by colleagues in the administration. Reporter Sarah Fitzpatrick’s article claims that Patel’s deficiencies are a threat to national security given the essential role the FBI director has in protecting the country from grave threats.

Patel responded by suing The Atlantic and Fitzpatrick for defamation. His lawyers argued that the article’s claims are false and accused The Atlantic of behaving irresponsibly by publishing them. The lawsuit alleges that, among other things, the magazine did not give Patel sufficient time to respond to the allegations before publication, and that the article did not adequately convey the denials and counterevidence that Patel and his supporters had provided.

What are we to make of all this?

Patel certainly has something to complain about. The Atlantic presents the claims of his alleged drunkenness and absenteeism as facts, not as mere speculation. And, as his filing notes, such factual claims certainly amount to libel per se. That is, they are claims that are prima facie injurious to reputation without the need to consult their context.

In addition, all of The Atlantic’s allegations against Patel are based on anonymous sources. Not one person went on the record. Indeed, as is all too common, the article is written in such a way that the reader cannot tell if the anonymous sources are claiming first-hand knowledge of what they are reporting or are passing along something they may have heard from others. As a result, no fair-minded person has any way to judge whether the claims really are true, or whether The Atlantic fabricated the sources, or whether the sources are real but lied to The Atlantic.

From the standpoint of moral common sense, Patel has a strong case. No person would feel he were being treated justly if his reputation and career were attacked based on unverified claims of serious professional misconduct from unknown sources. Nevertheless, American libel law is no longer governed by moral common sense, and Patel will accordingly have a difficult time prevailing in his lawsuit.

Under traditional American legal standards, false assertions that a person is incompetent at his job are considered libelous and presumed to be worthy of an award of damages. Throughout much of American history, it would have been up to the publisher of such extreme and damaging claims to show that they were true. However, this is no longer the case, and it will be up to Patel’s lawyers to bring satisfactory evidence to refute The Atlantic’s claims.

Moreover, and very remarkably, Patel will not necessarily be able to win his suit even if he succeeds in showing that The Atlantic’s claims against him are false. According to the libel standards laid down by the modern Supreme Court in New York Times v. Sullivan (1964), in his standing as a public official, Patel will also have to demonstrate that Sarah Fitzpatrick and The Atlantic acted with “actual malice”—that is, with knowledge that the article’s claims were false, or at least with “reckless disregard” for their truth or falsity.

Actual malice is very difficult to prove, not only because of its element of subjectivity—requiring the plaintiff to show something about the state of mind of the defendant—but also because of the extreme degree of misbehavior that it entails. The Supreme Court has made clear that the “reckless disregard” for the truth that the plaintiff must show goes far beyond mere negligence or carelessness on the part of the publisher. It must rather be a “high degree” of “awareness of probable falsity.”

In view of these standards, Patel’s legal filing makes an effort to claim that The Atlantic published its accusations with actual malice. Again, the magazine published claims of very serious misconduct on Patel’s part, based entirely on anonymous sources, giving Patel less than two hours to respond before publication, and not giving sufficient weight to his denials and evidence to the contrary. All of this, according to Patel’s lawyers, shows such a serious departure from the standards that would be observed by “a minimally competent journalist” as to amount to the recklessness sufficient to establish actual malice.

It is not at all clear, however, that even these claims are enough to show actual malice as it is understood by American courts. After all, The Atlantic and Sarah Fitzpatrick will be able to argue in response that they certainly did not know that the allegations of Patel’s being drunk and absent from work were false, and thought they were credible enough to warrant publication. They had sources they trusted, but they were also faced with Patel’s denials, so they published both, thinking that the claims were serious enough that the public good required their publication. Hence, they will say they did not act with actual malice, even if it turns out the allegations were false all along.

Patel’s suit thus points to a deeper problem in American constitutional law. The actual malice rule is not a necessity of American law—that is, it is not based on the text of the First Amendment or on its original meaning. As Justice Clarence Thomas has contended, it is instead an invention of Justice William Brennan and the modern Supreme Court in New York Times v. Sullivan. Such standards were utterly unknown to those who framed and ratified the language in the First Amendment that protects freedom of speech and of the press.

As I argue at greater length in my forthcoming book, No Liberty to Libel, for generations before its ruling in 1964, the Supreme Court had held that libel is no part of the freedom of the press and is instead a licentious abuse of that freedom. For this reason, the contemporary Supreme Court should revisit that ruling and reconsider the actual malice standard itself.

If The Atlantic’s allegations are true, then they have done a service to the public, because nobody with any sense thinks it is acceptable to have an FBI director who is a habitual drunk who sometimes treats his position as a no-show job. But if The Atlantic’s allegations are false, they are harmful not only to Kash Patel, but also to the public. If they are false, they waste the director’s and the administration’s time that could instead be used for tasks vital to national security. If they are false, they dupe some citizens into a baseless lack of confidence in their own institutions and deprive them of the information they need to hold their government accountable in coming elections.

It is vital to the country that the press be held to a standard of truth when publishing about public officials.

The post Kash Patel and the Libel Standard That Protects No One appeared first on The American Mind.

Editor’s note: This is a lightly edited transcript of today’s video from Daily Signal Senior Contributor Victor Davis Hanson. Subscribe to our YouTube channel to see more of his videos.

Hello, this is Victor Davis Hanson for The Daily Signal.

We have had the third attempt on President Donald Trump’s life, where shots were exchanged within two years, recently at the White House Correspondents’ Dinner at the Hilton Hotel in Washington, D.C., last Saturday evening. No president in U.S. history has been the object, the target, of three assassination attempts in which shots were fired by either law enforcement or the shooter himself.

And yet Trump—this is the third time.

So, we’ve had Cole Tomas Allen. We had Ryan Routh, remember, in Palm Beach, and we had Thomas Crooks on the roof in Butler. We also had a young man—Jonathan Oddi—and he was the person who tried to break into Mar‑a‑Lago and kill Trump, and he was killed himself by law enforcement.

Trump was not at Mar‑a‑Lago, but what is building this up? What’s the reason for all this? I’ll give you some examples. One is Hasan Piker. He’s sort of the Nick Fuentes of the Left. He’s an influencer, a podcaster, a commentator, and he’s captivated the base of the Left with his extreme anti‑Israel, antisemitic, pro‑Hamas, pro‑ISIS Islamist rhetoric. And he has said most recently, in an interview with The New Yorker and a New York Times reporter, that it was fine to steal from the Louvre, steal from stores, according to his Marxist doctrine that people must take what they need, given what he feels is the oppression of capitalism.

He also, remember, very controversially in this interview excused—or praised—he didn’t want to quite say that he would have killed Brian Thompson, the CEO of UnitedHealthcare. But he said it was a “social murder.” In other words, according to Marxist dialogue, that’s a term that people use to say that when somebody is deemed arbitrarily the enemy of the people, you can kill them with exemption.

But here’s what I’m getting at. In an earlier interview, he said, “Everybody knows someone has to do it.” And Taylor Lorenz, who had interviewed him on, I guess, more than one occasion, pointed out that he was talking at that time about killing Trump. So, he’d lowered the bar. In addition to people like Hasan Piker, there’s a number of celebrities, movie stars, political figures, and they’ve lowered the bar of what’s acceptable.

And by that I mean they have, in various waves, talked about either killing Trump or beating him up. And they all have preferred methodologies. Nancy Pelosi or Gavin Newsom or Robert De Niro—their preference was hitting him in the mouth. You remember that. Pelosi said, “I’d like to hit him, and then I would go to jail.” Newsom said he wanted to hit him in the mouth. Robert De Niro has said it so many times I can’t even recall them all.

For Kathy Griffin, remember, her preferred method was decapitation. For Shakespeare in the Park, remember that Shakespearean troupe that substituted a person who looked like Trump for Julius Caesar, where he was stabbed numerous times.

We had a famous chef who suggested he would like to poison Trump. We had Snoop Dogg, who said that he would shoot Trump, and I think he reenacted that. We’ve had people who have suggested—I think—we had a rock group that portrayed Trump as being eaten by vultures.

I could go on, but my point is that people on the Left in popular culture have, for now almost a decade, reified the idea—the abstract idea—of killing Trump with real examples, and that lowers the bar. And that means people like Cole Tomas Allen come out of the woodwork, or Oddi, or Routh, or Crooks. They come out because they feel that they’re going to be in the pantheon of leftist heroes if they kill Trump.

It’s not just these people, though. There’s also, remember, major figures—not just people in Hollywood or politicians—but major institutions that have talked about Trump as a fascist. Kamala Harris has said that Donald Trump—on two occasions—was a fascist.

Tim Walz just flew all the way to anti‑American Barcelona, Spain, in a time of war and wrote off the effort of our military, and Donald Trump is fascism. That was the sixth time—six times—he’s called Trump a fascist. Do you remember The New Republic cover during the campaign, where they had a picture of Donald Trump Photoshopped as if he were Adolf Hitler?

Joy Reid—who’s now gone from the network, she’s lost her job—almost religiously said that Donald Trump was a Hitlerian figure. Rachel Maddow said, “I have to study Hitler more to understand Trump.”

Well, my point is this. If all these celebrities are talking about killing him, burning him, cutting him in pieces, blowing him up—remember Madonna and Moby, “Let’s blow him up”—if they all do that ad nauseam again and again over a decade, and then you have this new heartthrob, the Nick Fuentes of the left, Hasan Piker, and he’s really legitimizing murder by contextualizing Luigi Mangione and making him into a hero, then everybody knows what you have to do.

So, he is lowering the bar. And then you have these major news reporters and politicians talking about Trump. And when I say “major,” I mean the Democratic ticket was headed by Kamala Harris and Tim Walz, and what they have in common is that they referred to Donald Trump as a fascist.

My point is this: If you believe he’s a fascist like Hitler—and you many times refer to him as Hitler, as many have done—Hitler caused a war that killed 70 million people. He incinerated 6 million Jews and another half-million Roma, homosexuals, and political prisoners. So, he is an evil man.

So, if a person is a little bit unhinged, or he is on social media, or he is suffering from arrested development and living at home, like many of these people were, they get it into their head that if I shoot Donald Trump, I’m going to be in the pantheon of leftist heroes for the rest of eternity. And maybe they’re right, because remember, you go into social media sometimes and these people will celebrate the attempt but regret the inability to kill Trump.

Now, let me just finish by saying, over this two‑year period, there have been three attempts. He’s got two more years in office. The Secret Service was lax under [Joe] Biden. They did a wonderful job inside the Hilton Hotel, but there were problems—why Allen was able to go in, check in with weaponry, and apparently walk around with weapons in his possession, and no one found him or checked him, or there was no security check at the entrance of the hotel.

So, my point is, in the next two years, we should expect—unfortunately, tragically—more of these assassination attempts unless we get people in the Democratic Party to speak out and say, “Stop it.”

We’ve had Steve Scalise and the baseball shooting. Bernie Sanders did that. We had Charlie Kirk, who was shot. Another leftist shot him. People on the Left—many of them—celebrated him. Hakeem Jeffries came out after this talk and said, “What? We’ve got to lower the temperature.”

Congratulations, House Minority Leader Jeffries. I just wish that when you opposed the “Big, Beautiful Bill,” you didn’t pose with a baseball bat, or that female members of the congressional Democratic delegation didn’t make a video about fighting and kickboxing and punching an imaginary Trump, as we were supposed to understand.

Or maybe, Representative Jeffries, just maybe, you should tell major luminaries on the Democratic side of politics—Hillary Clinton, Bernie Sanders, Tim Walz, Jasmine Crockett, Kamala Harris—please stop calling Trump a fascist, Hitler. Then we would believe you. But otherwise, we simply don’t.

And you’ve lowered the bar for every nut in America to take a shot at a president.

We publish a variety of perspectives. Nothing written here is to be construed as representing the views of The Daily Signal.

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