“Those who won our independence believed … that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.” – From Times V. Sullivan, quoting Justice Louis Brandeis in the 1927 case, Whitney v. California.
The headline was pretty alarming, even by pundit standards.
“Donald Trump has just declared his intent to destroy American democracy,” The Washington Post item read.
It was an opinion piece, by Erik Wemple, who covers media for The Post. And it detailed comments by the Trumpster at a Fort Worth rally, when he said he wants to make it easier for public figures like him to win lawsuits against newspapers.
“If I become president, oh do they have problems, they are gonna have such problems,” Trump told a cheering crowd as he criticized the media.
What odd timing. I read the comments the same week the Oscars awarded best picture to Spotlight, a movie that reveres investigative reporting.
More about that in a bit. For now, the question at hand: Would Trump’s plan to rewrite media libel laws destroy freedom and democracy as we know it? And if so, how?
It’s near-impossible to assess the hyperbole of political pundits — not to mention presidential candidates — so let’s just say I have a great deal of confidence in American democracy.
That said, even without specifics (far more difficult to get from candidates than hyperbole) Trump’s comments are alarming.
Is it hard for public figures like Trump to win libel lawsuits against the news media? It is indeed. It’s difficult for government officials and others to use lawsuits or other means to shut down questioning or criticism because of the First Amendment, which gives not just journalists but all citizens freedom of speech. That is actually freedom to investigate, analyze, assess and criticize the actions of government without fear of being shut down, locked up or any of the other remedies used in totalitarian countries to silence debate and dissent.
So not to embrace that hyperbolic headline, but yes, freedom of speech and the corollary, freedom of the press, are at the heart of our democracy.
Modern libel law was largely shaped by a 1964 Supreme Court decision known as Times v. Sullivan.
Sullivan was a commissioner in Birmingham, Alabama, overseeing police and other areas. And he sued civil rights leaders listed in a full-page advertisement in The New York Times seeking support for the civil rights movement. Sullivan sued the Times as well, for carrying the advertisement, “Heed Their Rising Voices,” which detailed student civil rights activities and protests for voting rights. The ad sought funding for the movement and to defend a legal case against Dr. Martin Luther King Jr.
Alabama courts gave Sullivan an initial win in the lawsuit, finding several inaccuracies in the ad — for example, students at a protest sang the national anthem and not “My Country Tis of Thee”; King had been arrested four times, not seven; police had been deployed three times to the Alabama State College campus but did not “ring” the campus. (Oddly, Sullivan was not even named in the ad; he convinced the courts that when the ad referred to “police” it was a personal reference to him.) The Supreme Court of Alabama upheld an award of $500,000.
But the United States Supreme Court overruled the Alabama courts, and in doing so clarified the foundation of modern libel law that so irks Trump.
The ruling clearly articulated protection for those who would criticize the government. The burden of proof for a lawsuit brought by a public official, the court ruled, was higher than for a private citizen who was the subject of reputation-damaging reporting.
The opinion noted the founding fathers’ intent in design of the First Amendment and our country’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
The First Amendment, the court noted, protects even unpopular ideas, and especially ideas offensive to or in opposition to the government or public officials.
The standard relating to public officials is widely known in journalism circles as “actual malice.” That means the reporting has to include more than just innocent mistakes for a public official to win a libel judgment. The standard for liability is knowledge that the reporting is false or reckless disregard for the truth — that is, the journalist didn’t even try to get it right, or worse, stated facts he or she knew were wrong, but didn’t care.
Trump in his rally said he wanted to reform the law so “we can sue them and win lots of money” when newspapers write what he called “a hit piece” and described as “purposely negative and horrible and false articles.”
It’s not clear he totally understands libel law; even under Times V. Sullivan, inaccurate reporting could be punished if courts agreed it was purposefully false with no regard for the truth.
But one man’s hit piece is another man’s expose. Trump has sued an author he claimed understated his wealth and comedian Bill Maher for a Tonight Show stunt, and has threatened a number of journalists with lawsuits.
Now Trump’s a businessman, you might say, and not (yet) an elected official. That’s true. But since Times v. Sullivan, the interpretation of the law has been expanded from just public officials to public figures who put themselves in the public arena, as candidates for office do.
So you might ask, aren’t journalists supposed to get the facts right? Why should they be protected if they get something wrong?
Let’s examine that question in the realm of Spotlight, the aforementioned movie about the Boston Globe newspaper’s investigation of the Catholic Church. The Globe’s story, highlighted in the Oscar-winning movie, detailed how the Archdiocese of Boston had quietly settled child molestation claims against at least 70 priests and kept the crisis from parishioners.
The reporting was meticulous and I know of no major errors. But suppose they had gotten something wrong — maybe concluded there was one more case of abuse than they could ultimately prove in court. Should the Catholic Church be able to win millions of dollars and potentially shut down the reporting because the Globe couldn’t prove every single fact in the story? Would the Globe, and other news media, be willing to face the risk of massive liability every time they published? Would they even be able to do investigations like the one detailed in Spotlight?
The Supreme Court, in Times v. Sullivan, concluded no. The threat of huge verdicts would have a chilling effect and discourage criticism of public institutions.
“Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive.”
Trump isn’t the first politician to complain about the press. Nobody likes criticism or being held to public scrutiny. But when you pursue the most powerful office on earth, you have to accept the relentless scrutiny of journalists — at least that’s true in our country. And in my view, that really is what makes America great.
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