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Sorry Mr. President, You’re Stuck with Our Libel Laws

Posted January 18, 2018

By Jonathan A. Karon

President Trump periodically threatens to revise libel laws, usually in response to unflattering news coverage. Following the recent publication of “Fire and Fury” a book which raised questions about his fitness for office, the President’s lawyers threatened legal action and the President vowed to “take a strong look at our country’s libel laws.” This is a hollow threat, thanks to the First Amendment to the Constitution.

A libel action seeks money damages for publishing a false statement about someone which harms their reputation so as to lower them “in the estimation of the community or deter third persons from associating or dealing with them.” One obstacle for the President is that there is no Federal libel law. Each state has its own libel laws, which are generally similar (because they are all based on common law) but which may have their own individual quirks. The greatest obstacle, however, is that the Constitution protects speech which criticizes government officials.

The First Amendment provides that Congress shall make “no law” “abridging the freedom of speech or of the press.” Many people are unaware that this protection initially only applied to laws passed by the Federal government. It was not until after the Civil War, when the Fourteenth Amendment was adopted, that this prohibition was extended to state governments. In 1964, the Supreme Court decided that the Constitution requires special rules when libel actions are brought by government officials.

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court held that “the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct.” Specifically, a public official cannot recover for damages for a false statement relating to their official conduct unless they prove “the statement was made with ‘actual malice’- that is with knowledge that it was false or with reckless disregard of whether it was false or not.”

The facts of the case smelled particularly bad. The plaintiff was one of three elected Commissioners in Montgomery Alabama, whose duties included supervision of the Police Department. He claimed to have been defamed by an advertisement that ran in the New York Times that in part criticized the actions of the Montgomery Police Department in responding to civil rights protestors and arresting Dr. Martin Luther King, Jr. The advertisement never actually mentioned the plaintiff by name but he claimed that the allegations could be understood as referring to him. There were some inaccurate statements in the ad, for example Dr. King had only been arrested four times, not seven times and several of the acts complained of pre-dated the plaintiff’s tenure as Commissioner. An Alabama jury (one wonders about its racial composition) awarded the plaintiff $500,000 against the New York Times and four persons who signed the ad.

The Supreme Court was having none of it, and some excerpts from its opinion are particularly pertinent and re-assuring in these times. Justice Brennan writing for the Court, noted our “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 public officials.”

The Court explained that allowing lawsuits for false statements made in good faith would have a chilling effect on freedom of the press. “A rule compelling the critic of official conduct to guarantee the truth of all [their] factual assertions-and to do so on pain of libel judgments virtually unlimited in amount-leads to a comparable ‘self-censorship’…Under such a rule, would be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone.’”

Finally, in a comment which strikes at the heart of today’s headlines, the Court noted that, “Errors of fact, particularly in regard to a man’s mental states and processes are inevitable. Whatever is added to the field of libel is taken from the field of free debate.”

Not one Justice dissented from the Court’s holding.

So, whether he likes it or not, the President will have to live with the libel laws we have.

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