In early January, it was revealed that Peter Brimelow — founder of the virulently racist and anti-immigrant website VDARE — filed a defamation suit against The New York Times for referring to him as a “white nationalist.” The lawsuit was almost certainly doomed from the outset, and, in a recent video for VDARE TV, even Brimelow acknowledged as much.

In an April 8th interview with far-right pundit Michelle Malkin, Brimelow claimed they had “no choice” but to sue. Brimelow said that VDARE is “being forced out of the public square in the name of these various epithets like ‘white nationalist’ and so on.”

And he was plainly annoyed at how difficult it is for him, as a public figure, to sue for defamation in the first place.

In essence, a public figure must show that a person who made an allegedly defamatory remark acted with what is called “actual malice.” This means the individual must have known the statement was false or acted with reckless disregard for its falsity.

In New York Times Co. v. Sullivan (1964), a unanimous Supreme Court applied this standard to statements made about public officials — in that case, an elected official in Montgomery, AL. Just three years later it expanded this standard to cover public figures more broadly in Curtis Publishing Co. v. Butts.

“I really do think — the more I think about [it] — this Sullivan decision has been a big problem in American discourse,” Brimelow said. He added that “you don’t have to, anymore, argue truth in defense to libel” and that one can “argue that it’s your opinion.”

This is a separate issue, though Brimelow is correct that opinions are not defamatory. That said, simply casting a statement as one’s opinion is not sufficient. In a defamation claim, courts have to look to whether a remark asserts a “statement of verifiable fact.” A “statement of verifiable fact” must assert something that is provably false.

Calling someone “racist” is an opinion as it cannot be proven false, and it is not actionable “unless it implies the existence of undisclosed, defamatory facts.”

This is an important point given a recent, unsuccessful lawsuit by a writer and editor at E. Michael Jones’ antisemitic Culture Wars Magazine. The judge in that case pointed out that labels like “racist” or “white nationalist” are not defamatory absent the implication of undisclosed defamatory facts which justified the opinion.

And anyone referring to Peter Brimelow as a “white nationalist” could point out that his website, VDARE, regularly promotes the white nationalist “Great Replacement” myth, and has advocated for secession and the creation of a white ethnostate. Or that it employs white supremacists as writers.

Or that Peter Brimelow — whose lawsuit is premised on the fact that the New York Times refused to call him a “civic nationalist” — told Slate in 2018 that his “heart is with civic nationalism” while his “head is with racial nationalism.” Or that he has addressed conferences by the white nationalist outlet American Renaissance.

In short, calling Peter Brimelow a “white nationalist” is likely not defamatory. That said, if people like Brimelow and Malkin have their way Sullivan and its progeny — and the very concept of a free press — will be relegated to the dustbin of history.

Malkin, who complained that “those labels have been thrown at me, and I’ve had little to no recourse,” gave a speech alongside prominent white nationalists in February and recently appeared on a white nationalist media outlet.

Still, she bragged that she has had success threatening smaller outlets into retracting articles about her while “larger outlets” have “acted with impunity.” And she said that if Sullivan is to be overturned, it will be the racist “America First” crowd leading the charge.

“You know I think at one point Trump even alluded to the need to have libel reform in our country,” she told Brimelow. “And you know, it’s going to be America Firsters and nationalists who are pushing at the vanguard.”