Media law expert breaks down UnitedHealth defamation lawsuit against the Guardian

Eden Prairie based UnitedHealth Group is suing the international news organization The Guardian for defamation. The article in question explores how UnitedHealth engaged in cost-cutting tactics by paying off nurses to cut down on hospital transfers. The Guardian cited internal emails, documents, and interviews with more than 20 current and former staffers, but the health insurance company claims the paper ran information it knew to be incorrect to capitalize on the assassination of UnitedHealth CEO Brian Thompson.

Joining me to break down this lawsuit is Jane Kirtley, a professor of media, law, and ethics at the University of Minnesota. Thank you very much for your time, Jane. Always appreciate you.

Thank you so much.

So this case is an interesting one, right? Because it could have implications in other cases and for freedom of the press. What is UnitedHealth arguing in the defamation lawsuit? Could you give us a summary?

Sure. This is really a pretty common kind of libel suit, if I can say so. Essentially, what they're saying is that The Guardian has published things that harms their reputation. And specifically, they are questioning the way The Guardian got the story, the way they presented the story, their motivations for publishing the story, and that, essentially, The Guardian didn't listen to them when UnitedHealth went to them and said, this is not accurate.

So in that respect, there's really nothing special about this 112-page complaint. It's quite thorough in its dissection of what it claims were the problems with The Guardian's reporting. To me, the most interesting part of the lawsuit is what seems to be almost a throwaway at the end of the complaint, which is how you start a case like this, which says that assuming that the publications are adjudicated to be libelous, that The Guardian should be forced to take them down off their website and should be stopped from publishing anything similar in the future.

That is a very, very unusual provision to see in any libel complaint in the United States. It happens in other countries, but in the United States and particularly in Delaware, I would say, where this lawsuit has been brought, there's explicit legal precedent that says you cannot stop somebody, you cannot enjoin somebody from publishing something that is false and defamatory in the future. You have to sue them after they do so.

So tell me a little bit more about that, if you would, Jane, because I would assume that if you sued someone for defamation and won, that they would have to take something down. So you're saying, is that dangerous? Does that concern you? What's concerning about that?

Well, it doesn't even matter if it concerns me. It's that the Supreme Court of the United States and other courts have said that it is unconstitutional to basically, what we call in legal parlance, enjoin a libel. And the idea behind that is I think we default in the United States to the idea that everyone has a right to express a viewpoint, to publish what they think is a matter of legitimate public concern, and that if somebody disputes that and says, no, that wasn't true, and here's all the damage it did to my reputation, their remedy is to recover monetary damages, which can be quite high.

And, in fact, UnitedHealth has asked-- they haven't really specified an amount of money that they're looking for. But one of the things that they have asked for is what is called exemplary punitive damages, which basically are intended to punish somebody for egregious conduct. And that, of course, is what they're saying The Guardian did, among other things, in this very lengthy complaint.

They include screenshots of things that The Guardian relied upon and are claiming that they misrepresented or selectively edited emails and other communications, for example, to make it appear that UnitedHealth had done things they had not done. And so those, again, are not unusual kinds of claims to see in a libel suit.

But I think what it comes down to is that, especially if you're a public figure, as UnitedHealth is, you have the burden of demonstrating that the speaker acted with what is called actual malice, the standard from New York Times versus Sullivan, which says that you have the burden of proving not only that it was false and that it harmed your reputation but that the publisher knew or had reason to that what it published was not true.

That's what's called actual malice. It doesn't have anything to do with ill will. It simply is the idea that you deliberately published a falsehood or you acted recklessly in making the publication. So if they can prove that, they could, in theory, prevail in this lawsuit. But it's a very heavy burden.

Yeah, and the case you mentioned, New York Times versus Sullivan, was from back in 1964. So it gives you an idea of how many years that precedent that they're still using. So if UnitedHealth doesn't have a chance of winning or if you think they do, what do you think about that? And if they don't, because you said this was kind of a pretty kind of run of the mill thing that you were reading, what would be the incentive to file the lawsuit?

Well, I think what we often think is the incentive is essentially to deter other news organizations from pursuing a line of inquiry. I mean, I can't say that they are not particularly bothered by The Guardian as opposed to some other publication. I think it's interesting that they would go after The Guardian, given that, as you mentioned, The Guardian does have an international presence. It does do business in the United States. But it is not US based.

And in many respects, there was a recent Pew study of who looks for what media sources, and The Guardian was not very high in that list. So one of the key questions would be whether The Guardian's publication caused them the harms that they are claiming or whether it was caused by something else. But regardless of the motivation or what the endgame is, I think what we're seeing is an attempt, as is always an attempt with big, high-profile libel suits, which is deterring other news organizations from pursuing similar lines of inquiry.

And we know that ABC settled a defamation lawsuit with President Donald Trump not too long ago. Do you feel like-- I don't want to use the word trend. I feel like that's overused a lot. But I think you get what I'm saying. Is this becoming a more common practice, to your point about wanting to deter others from looking into things? What do you see happening?

Well, my experience is that libel lawsuits by high-profile companies, politicians, or others tend to be somewhat cyclical. There were a lot of these lawsuits brought in the late 1990s, a whole series of them. Some of your listeners may remember the big lawsuit that was brought against Oprah Winfrey over some--

The beef.

--claims that a guest had made about unsafe meat-packing practices. And what happened was that there were big libel judgments at the trial court level. But then those big libel judgments were overturned on appeal for a whole variety of reasons. And so that kind of tamped down the enthusiasm that people had for bringing these libel suits because it's not inexpensive to bring a suit like this. It's not cheap to defend, but it's also not cheap to bring.

And so that kind of went away for a while. And then I think what happened was, or at least part of what is motivating this, we now have a couple of justices on the US Supreme Court who have indicated that they are interested in re-examining The New York Times versus Sullivan standard.

Justice Thomas, in particular, has been quite outspoken about this, writing dissenting opinions when the court has declined to take a libel petition and saying, we really need to reexamine this because it's hurting people, and it's ruining people's reputations. So we know that there are at least two and possibly three justices who have indicated they are interested in exploring this. So I can't rule out the possibility that there are people out there, lawyers and others, who are saying, I want my case to be the one where the Supreme Court takes it and overturns The New York Times versus Sullivan standard.

Oh, that's great context. Thank you so much, Jane. We'll see where this case goes and in what you're talking about, and we'll, of course, be tracking that. But before I let you go, I did want to ask, if I could, just about some of the misinformation that has been spreading almost immediately surrounding the shootings of Representative Melissa Hortman, Senator John Hoffman, and, of course, their spouses. As a media ethics professor, would you share your thoughts around that?

Well, I always hate to be in the position of vilifying a particular media platform. But I think we have to acknowledge that social media has been a critical factor in the spread of this misinformation.

And so fast.

And so fast. I hesitate to use the word instantaneous, but it seemed like it. I mean, within minutes, we had a whole alternative theory about who was behind this and what their motivations were and so forth. And many of those things have since been revealed to be completely untrue.

It's very frustrating. And I mentioned the Pew study a minute ago that was looking at where people get their news and information and who they regard as trusted media outlets. And what I found really interesting was that even though they indicated that they trust an outlet like NPR or they trust an outlet like New York Times, they're still getting a lot of their information from social media.

And how much of that is driven by just the distrust in the mainstream media that has been fostered for many years coming from the right but also the political left? There's a lot of forces out there who have basically said, do your own research. Go to alternative sources. And I don't have any problem with that as a proposition. I think it's important for people to go to a variety of sources.

But the thing you have to remind yourself is that many, many times they are being motivated by political concerns, ideological concerns, and they're not necessarily transparent about that. It's fair to say that everybody is going to have a point of view. But the key factor is to say if you're going to hold yourself out as being reasonably independent and objective, then I think it's really important if you indicate that, in fact, that's not the way you're operating.

And that's the thing that concerns me. I think given the prevalence of a variety of social media platforms where people can selectively choose to just seek the information that reinforces their existing beliefs, I would say it's an existential crisis in terms of trying to build a narrative that is founded on facts as opposed to opinion.

Yeah. Jane, thank you so much for your work and for your analysis. As always, we hope you'll come back and help us out along the way. Thank you.

Thank you. It's always a pleasure.

That was Jane Kirtley, a professor of media, law, and ethics at the University of Minnesota.