America’s founding fathers knew that a healthy democracy relies on an informed public to make decisions, that’s why with the First Amendment to the Constitution they protected journalists by ensuring the right to a free press. The election of Donald Trump as president has now put one of the pillars of American democracy in jeopardy.
The press has a duty to inform the public, to share vital information truthfully and earnestly. The First Amendment protects the press while defamation laws can protect citizens from the press. These laws allow media outlets to be sued in the case of libel or slander, at the heart of all defamation cases rests the battle between the First Amendment right of the press to publish against an individual’s right to protect their own reputation. Defamation is defined as the publication of a false statement, it must be presented as fact, not opinion, and also be harmful to a person’s reputation.
However not all citizens have the same rights when defending themselves from defamation. In the 1964 Supreme Court case, New York Times v. Sullivan the court ruled that public figures are entitled to less protection under the law than private citizens. After the case public figures would have to prove that they were identified, the statements in question were published, they were capable of being and understood as defamatory, and that they were made published with “actual malice.”
The New York Times
NEW YORK, TUESDAY, MARCH 29, 1960
The term actual malice stems directly from the case, the court ruled that in order for a public figure to win a defamation case the publishing outlet had acted with knowledge that the statements were false, or with reckless disregard for the truth. Understanding that a free and functioning press is necessary for a democracy the court decided that reckless disregard for the truth did not mean plain carelessness, poor reporting, or intent to harm. The media is granted more leeway in these cases, because if mistakes in journalism could be punishable by massive lawsuits, outlets would cease to hold public figures accountable.
Donald Trump’s vision of America has no room for Times v. Sullivan. This past February Trump stated that he wanted to “open up libel laws,” he viewed the way he and his campaign were covered by the New York Times and Washington Post in particular, as being unfair. However no court would find that anything printed would have been done with actual malice.
RightWingWatch.org, February 26, 2016
He said in an interview with CBS4 in Miami, “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected,”
Trump has expressed his desire to move our libel laws closer to those in England. Their defamation laws have made England the center of “libel tourism,” wealthy institutions and individuals seek to have their lawsuits tried in British courts. British courts side with plaintiffs far more often than the defendants because they assume the so-called defamatory statements in question are false, forcing the defendant to prove that it’s true. In America the inverse is required, the plaintiff must prove what was published is false.
Why does this matter? Bent Falbert, the executive editor of Ekstra Baladet, a Danish tabloid explains, “If you were a small newspaper and sued in London you could close them in a few months.” The process of defending yourself against defamation claims can bankrupt smaller papers before the jury even has a chance to come to a verdict.
Because of England’s laws many publishers will avoid the country or else risk a lawsuit, but for her book, Funding Evil: How Terrorism is Financed and How to Stop It, Dr. Rachel Ehrenfeld’s was still sued in a British court. In her book she accused Khalid bin Mahfouz, a Saudi businessman of funding Al-Queda, although it was not published in England Mahfouz’s lawyer ordered 23 copies of the book off the Internet so they could claim English jurisdiction. Ehrenfeld was order to pay damages and cease distribution of her book in the United States. She refused and the second edition was billed as “The book the Saudis don’t want you to read.”
Moving Picture Institute, November 15, 2007
Another weapon of the wealthy in their constant battle with the free press are strategic lawsuits against public participation, or SLAPP. In these suits the plaintiff hopes to silence their critics by draining their wallets until they submit to the plaintiffs demands. There is never any real intention of going to court in these suits, they merely want to burden the publication with legal defense fees until it becomes unfeasible to continue.
lawcomix.com
The goal of a SLAPP is the same as libel tourism, the wealthy are looking to use the legal system to their advantage in order to censor a publication. Trump has used these types of suits. Earlier this year the President Elect sued a Maryland journalist for raising the possibility that his wife Melania worked as an escort during her years as a model. Webster Tarply, the journalist fought the suit, attempting to invoke Maryland’s anti-SLAPP laws, which are unfortunately some of the weakest in the country. Tarply retracted the article in August but is still fighting the defamation suit.
President Trump does not necessarily need to “open up” libel laws, but by doing so the wealthy would have an easier time shutting down media outlets through litigation, or even simply through the threat of a lawsuit. Journalists may refuse to report on important issues because they fear the legal consequences. To get a glimpse of what this may look like Bollea v. Gawker earlier this year.
Terry Bollea, better known by his professional wrestling alias Hulk Hogan, sued Gawker media for posting portions of a tape featuring Bollea having sex with Heather Clem, a neighbor. Clem’s husband, Bubba Clem filmed the encounter without Bollea’s knowledge and reportedly held onto the video for six years, until Gawker published portions in 2012.
In March of 2016 a jury awarded Bollea $115 million in compensatory damages and $25 million in punitive damages. The settlement caused Gawker Media to file for Chapter 11 bankruptcy protection, six of their websites were sold to Univision Communications but the flagship site, Gawker.com was shut down.
Besides the publishing of a celebrity sex tape Gawker media did do valuable journalism. Gawker purchased and published video of late Toronto Mayor Rob Ford smoking crack cocaine. Gizmodo, their technology site uncovered the initial prototype of the iPhone 4, and Deadspin, their sports site exposed unreleased court documents from NFL player Greg Hardy, revealing disturbing evidence of assault against his then girlfriend.Deadspin also exposed that then Notre Dame linebacker Manti Te’o’s supposedly deceased girlfriend did not exist. A journalist feat that earned the admiration of the future president.
Following the verdict it was discovered that Bollea’s legal team was in part funded by billionaire Peter Thiel. Thiel founded Paypal, serves as on Facebook’s Board of Directors, and in 2007 Gawker outed Thiel as being gay. Ever since then Thiel has been determined to end the website, committing up to $10 million to various suits filed against Gawker. While several articles posted by the website were of questionable newsworthiness Gawker also provided a valuable journalistic service, and a billionaire with a vendetta should not be the one to decide which media outlets are allowed to exist.
Thiel attempts to paint his involvement in the case as that of a good samaritan, however no matter his intention the reality is Thiel’s involvement in the case, coupled with his membership on Trump’s transition team has many journalists worried.
Fortunately there may be hope.
The President-Elect’s apparent inability to commit to a policy proposal may be journalism’s saving grace. It also may ultimately not matter, because there is no single libel law to “open up.” Libel is a matter of state law, and as the president cannot change state law, the President-Elect would have to fundamentally change the interpretation of the First Amendment.
There are two ways to go about this, first would be overturning, or at least weakening the standards set by Times v. Sullivan. Even if he appoints two justices libel is not a conservative or liberal issue, so even if he hand-selected the judges changing altering Times v. Sullivan is no small task.
His second option would be no less farfetched. He could attempt to amend the Constitution, something only done 17 times since the Bill of Rights. To do so two-thirds of the Senate and House of Representatives must approve the amendment, or two-thirds of the state legislators call for a constitutional convention. Both are incredibly unlikely.
However Trump has repeatedly proved everyone wrong time and again. At best he has swen an attitude of distrust and hostility towards the press, at worst he is a major threat to free speech itself.
Regardless of one’s politics Donald Trump’s crusade against free speech and the press is worrisome. If you wish to stand alongside the media against his attacks subscribe one of these newspapers, or donate to the ACLU.
Libel Laws Under President Trump 