What It Would Mean to “Open Up the Libel Laws”

One of the dumber statements the President has made — several times now — is his promise to “open up the libel laws” because of all the unfair coverage he thinks he’s getting from the media.  By making it easier to sue newspapers and television stations for libel or defamation, the thinking goes, the President could sue them when he feels the coverage is false or slanted.  This is, after all, a tried and true tactic he employed over the years in his business life.  Not happy with the story?  Get your Pit Bull Roy Cohn to issue a snarky demand letter:  retract the story or I’ll sue you…

Hypersensitive to criticism (a symptom consistent with narcissism), the President cannot abide any source of information other than Fox News, which at this point might as well be called State TV.  He rails against the New York Times and calls CNN “fake news,” with no apparent irony about the fact that his campaign benefited tremendously from CNN’s endless coverage of his rallies, its promotion of false equivalencies between HRC’s mistakes and his, and the impact of the real fake news online that demonized his opponent beyond all connection with reality.

Accustomed to manipulating the New York tabloids to maximize his visibility (Marla Maples:  “Best Sex I’ve Ever Had!”), he’s in a more serious game now, one where consequences attach to his words far more than before.  The scrutiny is far greater, and the outing of his mis-statements, falsehoods, and exaggeration is more immediate.  To a 70-year old man accustomed to not being questioned, seeing such negative coverage no doubt enrages him, as many internal White House staffers have confirmed.

Leaving aside for now the point that he does not have the unilateral power to make such a change of the libel laws himself, the statement that he will “open the libel laws” is fundamentally wrong in every conceivable way.  First, existing libel and defamation laws protect ordinary civilians (not “public figures”) from injurious things that other people or entities say or publish about them.   If the false statement causes actual injury, the plaintiff can receive damages.  If the statements were intentionally false, in some instances the plaintiff can recover even punitive damages.  So libel and defamation laws are alive and well, and don’t need “opening up.”

What the President means by “opening up” is a return to the state of the law to its pre-1964 status, when public officials could try, through libel suits, to intimidate newspapers into silence with the threat of civil judgments.  Sorry, Mr. President.  It’s not going to happen.  This is another promise from which you’re going to have to back down.

In 1964, the abuse of libel lawsuits by local government officials against the media made its way to the Supreme Court.  The New York Times had run an ad  paid for by private advocates in support of civil rights workers under threat in the South.   A local Alabama sheriff (Sullivan), although not even named in the ad, brought a libel suit against the New York Times in Alabama state court, appealing to local prejudices against the out of town newspaper, claiming that the paper had libeled him by running the ad, which had been critical of local law enforcement generally but did not mention anyone by name.  He brought the case in the local friendly jurisdiction and obtained a half a million dollar judgment against it, the equivalent of several million today.  The Times appealed.

The Supreme Court ruled 9-0 (yes, they used to actually be unanimous on important matters back then) in New York Times v. Sullivan that libel and defamation suits are limited by the constitutional protection of free speech, specifically the First Amendment’s protection of freedom of the press.  The Court held that the press is protected from attack by public figures unless “actual malice” can be shown.  What this ringing endorsement of the freedom of the press means is that public figures like the President cannot sue newspapers for publishing criticisms unless there are malicious, intentional falsehoods.  In other words, if you intentionally publish something false about a public figure, you can still be sued for that.  But if you make an honest mistake, or if you state the truth or a critical opinion wounding the public figure’s ego or reputation, that is not enough to sustain a lawsuit and a monetary judgment.

This ruling makes clear intuitive sense, and makes one wonder how there could be any other outcome.  Bravo Justice Brennan for recognizing the power of a 9-0 vote and marshalling the opinion through multiple drafts to get to unanimity.  Anyone wanting to learn more about the  Sullivan case is encouraged to read Anthony Lewis’ fascinating account: “Make No Law” (photographed above).   Another short tribute to it, written on its 50th anniversary, can be found at: https://www.nytimes.com/2014/03/09/opinion/sunday/the-uninhibited-press-50-years-later.html.

If the President were more familiar with history, he would understand what bad company he is keeping by advocating for the ability to intimidate or silence the press.  Pick any example you like from history:  shutting down the press is the key first step that despots the world over take to consolidate power.  Silencing the press, whether through violence or libel suits, is aimed at the same end:  eliminating criticism of government officials and eliminating transparency.  It is the first play in the playbook of tyrants.  This was well understood by the authors of the First Amendment, who stated unambiguously that the government shall “make no law” abridging freedom of speech, or of the press, or of assembly.

Of course Southern segregationists had wounded egos when their tactics of violence were exposed publicly.  But without that exposure, the Civil Rights Movement would never have generated the international moral outrage that brought about positive change.  Had the Supreme Court ruled the other way in Sullivan, libel laws could have been used indefinitely to intimidate the press with lawsuits — which is just what the President means when he talks of “opening [them] up.”  Bring back the good old days when critics could be silenced and authorities could just do what they wanted.

He fails to understand that there really never were any such good old days.  The First Amendment,  of course, dates back to the founding of the country and was specifically included to protect the public from the kinds of despotic restraints on speech imposed by the Crown.  And it received its first serious challenge from none other than John Adams, our second President, only a few years after the birth of the country.

Adams, brilliant but prickly, had his ego wounded  by his political opponents more often than he could tolerate.  The source of this antagonism was Thomas Jefferson, his former friend and then rival, who hired third parties to publish scurrilous material (much of it false) against the President.   Adams pushed through the now-infamous Alien and Sedition Acts, which among other things gave the President the power to silence and jail his critics.  Sound familiar?

The Sedition Act prohibited criticism of the government, and was clearly unconstitutional under the First Amendment.  It was set up to expire at the end of Adams term of office in 1800 (a dead giveaway that the Federalists did not want it to boomerang on them if they lost the next election).  It was used to prosecute and jail publishers of pro-Jefferson newspapers.  When Adams left office, the law was allowed to expire.  History records the Sedition Act in particular as Adams’ worst and least forgivable mistake.  The law has stayed in the dustbin since 1800, only to be mentioned by historians as a bad idea that should never have been tried in a country calling itself a democracy.

What comes with the turf of running for President and being President is the obvious reality that you are going to engender criticism, no matter how careful or solicitous of others’ opinions you are.  There has never been a President in history who has not been criticized.  Hopefully there never will be, because that means democracy is dead.  Taking criticism from wherever it comes is just part of the job, and reflects the fact that the President works for the people and not the other way around.  “Consent of the governed” were not idle words in the Declaration of Independence.  The people, even we here, have a voice in these matters.  There is no longer a divine right of kings.

Ignorance, it turns out, is not always bliss.  For this President, his illiteracy in the meaning of the First Amendment and many other things governmental proves profoundly bothersome to him, because he can no longer simply require that everyone do his bidding, as in his private company.  Ignorant of history and ignorant of what the First Amendment holds, he rants and wonders why it’s not possible to simply order that things be done his way without criticism.

Well Mr. President, that’s not who we are and not how our country is set up.  This is not a marketing or branding exercise, where puffery is allowed and pushed to maximum effect.  (The Trump Tower boasts 68 floors but in fact has only 58, but hey who’s counting?)   In the nuclear age, facts matter more than ever.  Objective truth matters.  Having a free press unfettered by threats of lawsuits day in and day out is indispensable to a functioning democracy.  The world is full of examples of what it looks like where the press is not free, places where there is nowhere to go for access to real information. No one would make that choice.

No, there’s no need to change the libel laws.  New York Times v. Sullivan is “settled law” from a 53 year old unanimous precedent and is not going to be undermined even by this more conservative Supreme Court.

The President is just going to have to deal with it.