The Washington Post - USA (2022-02-13)

SUNDAY, FEBRUARY 13 , 2022. THE WASHINGTON POST EZ BD B5

and selection process. At the very least, they

must be consulted for nominations. Former

players of color could be tapped as identifiers,

recruiters and nominators of prospective

head coaches and front-office leaders.

All 32 teams should form their own

standing councils, including at least a dozen

Black retirees, whose input is sought every

time there is leadership turnover. Additional-

ly, the NFL needs to create and invest

significant financial resources in strong,

meaningful pipeline programs that will accel-

erate assistant coaches of color to head

coaching positions. Sustaining a robust cadre

of highly qualified prospective head coaches

reduces the risk that teams will haphazardly

throw any person of color into their finalist

pools for the mere sake of compliance.

Over the past two seasons, “End Racism”

has been spray-painted in the end zones of the

fields on which many NFL teams play. But

there is only one sure way to end, or at least

significantly reduce, racism in the league’s

hiring practices: Black players and their

teammates from other racial groups must

demand change. They have to flex their

collective power.

More than six years ago, Black student-

athletes at the University of Missouri threat-

In 2003, the NFL adopted what it calls the

Rooney Rule, which mandates that teams

interview at least one person of color for head

coaching and front-office leadership jobs.

Mike Tomlin of the Pittsburgh Steelers is

now the only Black NFL head coach, so clearly

this diversity policy has fallen far short of its

intended outcome. NFL Commissioner Roger

Goodell admitted as much in a memo he sent

to all 32 teams last weekend, saying the

results of the current hiring cycle were

“unacceptable” as far as diversity goes. The

Rooney Rule was supposed to ensure that

teams would be accountable for having a

diverse candidate slate. But there is no

accountability for ultimate hiring decisions,

which at least partly explains the rule’s

failure. Putting the policy into practice, as we

see in the Flores case, too often amounts to

performative compliance. Team owners and

league executives have to want and value

racial diversity at the highest levels in their

organizations — but it’s clear they don’t.

The NFL and its 32 teams need new

recruitment, hiring and accountability meth-

ods. Nearly 7 out of 10 NFL players are Black.

The League generates billions of dollars off

their labor. These Black athletes should be

more involved in the head coach recruitment

Former Alaska

governor Sarah

Palin leaves federal

court in Manhattan

on Tuesday. Her

defamation lawsuit

against the New

York Times could

have major

implications for

libel law.

Former Miami

Dolphins head

coach Brian Flores,

center, who was

fired in January,

has sued the NFL

and three of its

teams, accusing

them of racial

discrimination in

hiring and pay.

T

o protest police brutality and racial

injustice, Colin Kaepernick knelt dur-

ing the national anthem before San

Francisco 49ers games throughout the 2016-

17 season. He was pushed out of the NFL.

Three years later, the same league that ruined

Kaepernick’s football career was running

television commercials about racial justice.

After the killings of George Floyd and Breon-

na Taylor in 2020, NFL players were suddenly

allowed to kneel in protest. “Black Lives

Matter” and other racial justice messages

appeared on uniforms and helmets, stadium

jumbotrons and team websites. Most players

who joined protests and other anti-racism

activities appeared sincere in their desire for

change.

But if there was any doubt that the NFL

itself was merely pretending to care about

racism, the lawsuit filed Feb. 1 by former

Miami Dolphins head coach Brian Flores

made clear that the league’s racial justice

gestures — like the “End Racism” and “It

Takes All of Us” messages stenciled in the end

zones for this Sunday’s Super Bowl — were

largely performative.

A pro sports organization in which nearly

70 percent of players are Black, but only one

head coach is, cannot credibly declare that

Black Lives Matter. Flores, fired last month

even though he led his team to its first

back-to-back winning seasons in almost 20

years, says Dolphins owner Stephen Ross

tried to pay him extra to lose during his first

year with the team, which would have

improved its draft position. His lawsuit

touches on the types of systemic problems

that players have been trying to bring atten-

tion to for years. The NFL and the teams

named in Flores’s complaint have denied his

claims.

The ways in which Ross allegedly attempt-

ed to control Flores highlight racialized

power imbalances between White owners

and Black coaches. Owners probably attempt

to control White coaches, too. But Flores was

one of the few Black coaches in the league.

Refusing to satisfy unethical requests wasn’t

just standing up to his boss; for Flores, it also

meant standing up to his White boss. It is also

highly likely that Flores was fully aware of the

racialized double standard that routinely

disadvantages Black coaches in the NFL.

Their head coaching tenures are shorter, even

when their records are better than White

head coaches’ records.

The lawsuit alleges that New England

Patriots Head Coach Bill Belichick accidental-

ly informed Flores three days before his

interview with the New York Giants that

Brian Daboll, a White coach, had already been

selected for the job. In screenshots that

subsequently emerged, it was clear that

Belichick was texting the wrong Brian. This

reveals another systemic problem: the obliga-

tory inclusion of Black candidates whom

team executives have absolutely no intent to

ultimately hire.

Brian Flores’s lawsuit shows how empty the NFL’s anti-racism messaging is

TYLER KAUFMAN/ASSOCIATED PRESS

The league is only pretending to

care about diversity, says business

professor Shaun R. Harper

ened to forfeit a football game (which would

have resulted in a $1 million penalty for the

university) if swift action was not taken to

correct long-standing racial problems at the

institution. That week, the president of the

Mizzou system and the chancellor of the

main campus were forced to resign. I argued

at that time that Black student-athletes on

revenue-generating sports teams are more

powerful than they know. The same is true in

the NFL.

If there is going to be real change at the

highest levels of the game, Black players and

allies on their teams must collectively engage

in public-facing activism that dismantles

systemic racism in the league. It can’t be one

or two courageous men who take this on. The

NFL would probably just do to them what it

did to Kaepernick. But a bold, coordinated,

leaguewide athlete protest movement could

work. Maybe the Super Bowl is the time for

the movement to start.

Twitter: @drshaunharper

Shaun R. Harper is a provost professor in the

Marshall School of Business at the University of

Southern California. He also is founder and

executive director of the USC Race and Equity

Center.

to the pre-Sullivan standard would create

problems of its own. Most important, it

would leave journalists and other public

speakers vulnerable to the kind of politically

motivated litigation that the Times faced in

1964, when, after the newspaper published

an advertisement containing minor factual

inaccuracies about the civil rights movement

in Alabama, a phalanx of segregationist

forces tried to use libel suits to run the paper

out of business — and almost succeeded. No

one who cares about an independent press in

the United States should view the return of

this state of affairs as a positive development.

But the Sullivan rule is not the only

mechanism one could devise to protect press

freedom against vexatious litigation. There

are many potential changes to the law that

could make defamation lawsuits less expen-

sive and ensure that public figures and

officials could more easily defend their

reputations when defamed. Most obvious

among these are damage caps, which could

limit the risk that libel lawsuits could drive

media organizations out of business. Mem-

bers of the Supreme Court have argued for

this reform for decades. Stronger statutory

protection against politically motivated liti-

gation, at both the state and the federal

levels, could also help reconcile protection

for reputation with press freedom in the

Internet age. Changes to court procedure

could limit discovery and otherwise shorten

the length and expense of libel trials so that

media organizations wouldn’t have to dedi-

cate as much time, energy and money to

defending them. And venue rules could help

ensure that media organizations do not get

hauled into court before hostile out-of-state

juries.

Rather than talking seriously about these

kinds of reforms, though, debates about the

future of libel law overwhelmingly focus on

the Sullivan rule, divorced from the facts

surrounding it. Perhaps that’s not surprising:

The rule is an icon of American constitutional

law and unique in the common-law world. It’s

an emblem of American free-speech excep-

tionalism and a source of pride. But it’s also,

to some extent, an accident of history. We

need not let Sullivan limit our imagination of

how First Amendment law could better serve

the public interest in a vastly different media

environment from the one in which the

decision was handed down.

unsurprisingly for a rule fashioned on the fly,

there really is much to criticize about it.

The standard isn’t always good for either

publishers or public figures. It removes any

legal incentive for those who write about

public officials or public figures to vigorously

fact-check their stories (though most news

organizations do this anyway, recognizing

that readers want accurate reporting) — and

consequently, perhaps, contributes to dimin-

ishing public faith in the credibility of the

news media. It also makes defamation cases

very expensive to litigate, especially for

publishers defending them: The standard

focuses trials on the famously difficult-to-an-

swer questions of knowledge and intent,

frequently requiring extensive discovery as a

result. This allows motivated actors to use the

threat of litigation to deter media organiza-

tions from reporting critically about them.

And the rule prevents public-figure plaintiffs

whose reputations are brutally damaged by

merely negligent falsehoods from claiming

any compensation. Critics argue that these

problems with the “actual malice” standard

mean that the law should return to the

pre-Sullivan status quo, when state legisla-

tures and Congress were free to fashion

whatever liability rule for defamation cases

they desired.

The decision’s defenders argue that these

costs are worth it. And it’s true that returning

many journalists rushing to the decision’s

defense. Sullivan’s critics argue that the

“actual malice” standard might have made

sense in 1964, when the primary players in

the public sphere were large media organiza-

tions like the Times that had a vested interest

in being perceived as reliable disseminators

of news — but that it makes no sense today,

when anyone can spread misinformation so

long as they have social media followers.

These arguments have persuaded some of

the most powerful judges in the land. Last

year, Justices Clarence Thomas and Neil M.

Gorsuch both wrote opinions that said Sulli-

van should be overruled. These dissents have

given some hope — and others heart palpita-

tions — that the rule is not long for this world.

Some have suggested, for example, that

Palin’s lawsuit against the Times might

provide a vehicle for the Supreme Court to

overturn, or substantially limit, the Sullivan

rule.

It’s rather strange that such a heated

debate is raging over the “actual malice”

standard. These words, now a lodestar of

constitutional law, almost didn’t make it into

Sullivan at all. None of the litigants in that

case argued for such a rule, nor was there

much debate about it during oral argument.

Justice William Brennan, who wrote the

opinion in the case, claimed that his clerks

came up with it in chambers. Perhaps

I

n recent years, an increasing number of

influential voices have argued that per-

haps the most famous First Amendment

case in history might be wrong. A trial is

underway in federal court in Manhattan that

could ultimately determine whether they’re

right. The outcome has been billed as a

pivotal moment for press freedom in the

United States. But it is worth spending a

moment to consider whether two words from

a 58-year-old case should bear so much

weight.

In 1964, the Supreme Court held in New

York Times v. Sullivan that government

officials could win defamation lawsuits only

if they could show that false statements about

them had been made with “actual malice” —

that is, by someone who knew that the

statements were false or who recklessly

disregarded that possibility. The court later

extended this rule to defamation suits

brought by public figures more generally, and

in the following decades, the “Sullivan rule”

became emblematic of the United States’

famously speech-protective approach to the

regulation of the press.

The litigation between Sarah Palin and the

New York Times (after a delay for Palin’s

covid-19 diagnosis) hinges on the Sullivan

rule. Whether Palin can prove that the Times

defamed her in 2017 when it editorialized

that “the link ... was clear” between Palin’s

political rhetoric and a 2011 mass shooting

will depend on interpretation of the rule. So

will similar cases elsewhere: an appeal

pending between Cardi B and a celebrity

vlogger who defamed the rapper by spread-

ing false rumors about her private life, and a

lawsuit that Dominion Voting Systems

brought against Fox News after the cable

channel reported that the company’s voting

machines worked incorrectly during the

2020 election. Because “actual malice” is

hard to prove, these cases will be difficult,

although not impossible, to win.

Defenders of the Sullivan rule argue that

this is a good thing, because it prevents

politicians and celebrities from using libel

lawsuits to punish media organizations that

publish critical stories about them. For many

decades, this was the consensus view, and it

probably still is.

But over the past few years, a growing

number of scholars, judges and politicians

have argued that the Sullivan rule does more

harm than good, by removing incentives for

journalists and other public speakers to be

careful with the truth. A prominent Demo-

cratic election lawyer sent Twitter aflutter

last month with a (now-deleted) tweet that

suggested Sullivan should be revisited, with

Is the legal standard for libel outdated? Sarah Palin could help answer.

STEPHEN YANG/REUTERS

Twitter: @glakier

Genevieve Lakier is a professor of law at the

University of Chicago Law School and senior

visiting research scholar at the Knight First

Amendment Institute at Columbia University.

Her lawsuit

against the

New York

Times will

hinge on a

landmark

Supreme Court

case. Some

critics think it’s

time for a new

rule, writes

law professor

Genevieve

Lakier.