Noah Feldman, Columnist

Roger Ailes' Empty Lawsuit Is a Threat to Free Speech

Going after New York magazine for defamation is futile, but winning may not be the goal.

September 7, 2016 at 6:58 PM UTC

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

Hulk Hogan's unfortunate precedent.
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The defamation lawsuit that Roger Ailes’s lawyer is threatening against New York magazine would seem to have no chance of legal success.

So why has the former chairman of Fox News bothered to hire the lawyer who brought down Gawker on behalf of Hulk Hogan? The answer is that the threat puts the magazine on the defensive -- and that's a problem for free speech. The First Amendment has been interpreted to protect even defamatory speech against public figures. But as the Hogan case shows, not every court applies the constitutional standard correctly. In that environment, even legally empty threats have a chilling effect.