Since the inception of the tort of libel, claims against the media have created a tension between the First Amendment’s commitment to a free press and the desire to prevent reputational harm to individuals. Further complicating the issue are cases in which plaintiffs allege that literally true statements are defamatory based on implications created through juxtapositions or omissions of facts. This is known as libel by implication, a tort currently governed by states through a patchwork of varying standards and interpretations. Not only does the lack of uniformity leave journalists without due notice of the law in the jurisdictions they are reporting on, but also it encourages forum shopping by plaintiffs and attacks against the media. A solution is critical: libel by implication claims have become increasingly popular with politicians seeking to dispel criticism — precisely the speech the First Amendment was intended to protect. To best protect crucial reporting in an era of animus towards the press, this Note argues that states need to adopt a uniform standard for governing libel by implication that requires a showing that (1) the implications of the article are false and (2) the journalist acted with actual malice in publishing them.

“I imagine it’s no surprise by now that many courts and commentators have complained that defamation law is a ‘quagmire,’ lacks ‘clarity and certainty,’ is ‘overly confusing’ and ‘convoluted,’ leaves courts ‘hopelessly and irretrievably confused,’ and ‘has spawned a morass of case law in which consistency and harmony have long ago disappeared.’”

Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 643 (Tex. 2018) (internal citations omitted).