A SHOWING OF ACTUAL MALICE: THE WHITE HOUSE “TIRES” OF THE FIRST AMENDMENT

donald_trump_president-elect_portrait_croppedBelow is my Hill column this week on the confirmation from both Trump’s Chief of Staff and the White House Spokesperson that the Administration is working on possible changes in our libel laws — changes that by definition would require altering the First Amendment.  The decision in New York Times v. Sullivan is decades old and celebrated as one of the Court’s greatest decisions.  It has never been challenged by a president . . . until now.  The case clearly states that the libel standard is a constitutional rule and thus the Court would have to overturned the decision or the President would have to amend the First Amendment.  Whatever must be shown under the “actual malice” standard of New York Times v. Sullivan, it pales in comparison to the actual malice shown by this Administration toward the free press.  Here is the column:

In the new age of Trump tweets, many citizens have developed what soldiers have called “the 1000-yard stare” — a type of expressionless, numb demeanor with every new tumultuous tweet. President Trump calls North Korean dictator Kim Jong Un a “smart cookie” because he succeeded retaining power by killing off his rivals (including his uncle). The public stares blankly. Trump calls Turkish President Recep Erdogan to congratulate him on acquiring near dictatorial powers and sends a White House invitation to international pariah Philippine leader Rodrigo Duterte (who has admitted to murdering criminal suspects). Silent stares.

So with statement that the Trump administration was seriously considering an effort to curtail the First Amendment, the very touchstone of American democracy, there was little response. However, this statement was not some impulsive tweet at dawn from the president.

It was coming from White House Chief of Staff Reince Priebus, who told ABC News Chief White House Correspondent Jonathan Karl that the administration believes that free speech protections need to be changed and is actively working on the problem. White House Press Secretary Sean Spicer also said the administration is looking into ways to change libel laws.

Why? Because the president is upset with all of the bad media. But as numb as many have become with the attacks on the media, the courts, and other institutions, this is different. As Samuel Johnson said, nothing “concentrates the mind” so “wonderfully” as news of your own hanging.

In the interview, Karl stated correctly that libel laws are based on constitutional protections and that the only way to change them would be to amend the Constitution. Priebus responded clearly and chillingly, “I think it’s something that we’ve looked at. How that gets executed or whether that goes anywhere is a different story.”

When Karl asked whether the administration really believed that the president should be able to sue media for what he thought was irresponsible reporting, Priebus repeated his prior answer by saying, “I already answered the question. I said this is something that is being looked at. But it’s something that, as far as how it gets executed, where we go with it, that’s another issue.”

According to Priebus, the interest in amending the Constitution was because “newspapers and news agencies need to be more responsible with how they report the news. I am so tired.” I have little doubt that Priebus is tired. We are all tired. However, amending the First Amendment for presidents and their aides to allow them to sleep better is precisely the danger it was meant to avoid.

While President Trump has previously proclaimed that “I love the First Amendment — nobody loves it more than me,” he has repeatedly called for its curtailment. For example, he has called for criminalizing the burning of the American flag despite repeated rulings of the Supreme Court (including conservative icon Antonin Scalia) that such acts are protected by the First Amendment.

However, Trump appears most angered by the protections afforded to the media. In February 2016, Trump began his call for changing libel laws during a rally in Texas when he said, “When they write purposely negative and horrible and false articles, we can sue them and win lots of money.” He added later that while he “loves” the free press, but “we ought to open up the libel laws, and I’m going to do that.”

I have previously agreed with President Trump that the media has shown facial bias in reporting some stories. In responding to Trump’s unwarranted attacks on the press, journalists have fulfilled the very stereotype that he presented at rallies. However, we have also seen a rising army of apologists who excuse comments like the calls for amending the first amendment or changing libel laws. These comments are more than reckless. They are dangerous.

The Supreme Court laid out the constitutional basis for libel laws roughly 50 years ago in New York Times v. Sullivan. It is a case that is strikingly relevant to the calls for greater liability for the media. The case arose out of the attacks on Martin Luther King and freedom marchers. The New York Times ran an advertisement that referred to those abuses and claimed that King had been arrested seven times. In reality, King was arrested four times.

While not expressly mentioned, Montgomery Public Safety commissioner, L.B. Sullivan sued for defamation and punitive damages. He won under Alabama law in a highly dubious state preceding that awarded $500,000. It was one of a slew of cases designed to drain the media financially for exposing segregationists.

Sullivan was not just hyper sensitive to criticism, he wanted to use state laws to hammer  what he and his supporters saw as the lying, elitist Northern media. The Supreme Court recognized it for what it was: a direct attack on the protections accorded to both free speech and the free press. Justice William Brennan explained how the First Amendment was meant to give the free press “breathing space” to play its critical role in our democratic society.

Liability was being used by Southern politicians to try to scare and chill the media. One former Southern politician turned justice, Hugo Black, was blunt about the danger: “The half-million-dollar verdict does give dramatic proof … that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials. The factual background of this case emphasizes the imminence and enormity of that threat.”

The result was not to bar lawsuits by politicians like Trump against the media but rather to require a higher showing of proof. He must prove that the media had “actual malice” where it had actual knowledge of the falsity of a statement or showed reckless disregard whether it was true or false. That is the standard that Trump dislikes because it insulates the media from the threat of litigation. Most of the stories that Trump has railed against would not be actionable under this standard. However, Trump seems to be relishing the idea of bringing financial pressure on the media through litigation — the very goal of Sullivan and his contemporaries to bring the media to heel.

As “tired” as Priebus may be, few us are likely to get much sleep with the White House exploring ways to curtail or amend the First Amendment. The president clearly has the power to rescind the executive orders of his predecessor. President Obama elected to rule by executive edict and what a president giveth another president can taketh away. However, the First Amendment was not given to us by a president. We gave it to ourselves to protect us against presidents (and others) who are tired of criticism.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

76 thoughts on “A SHOWING OF ACTUAL MALICE: THE WHITE HOUSE “TIRES” OF THE FIRST AMENDMENT

  1. Big deal….why do you all pretend there are laws in this Country? There are none. They serve to protect those who break them as they are respected by the working class and exploited by Lawyers and the so called ‘Elites’ (in their own minds anyway…. Our Government is no better than any mob.

  2. Regarding the 7th amendment, I have never been required to serve on a jury, although once I was on the assembled jury panel in County Superior Court and once, recently, on the Federal court jury call list for a term.

  3. Trump, Trump bo bump…
    Banana fanna fo fump.
    Fe fi fo mump.
    Dump Trump!

    If the first two letters are ever the same..
    You drop them both and say the name…
    etc

    • It’s the meaning of your post that really matters. I’ve never heard it expressed in quite that way.

      Hey, that childish presentation might be simple enough to convert some Trump’s supporters! It’s catchy enough to replace some of those damn slogans he repeated during his brainwashing campaign. BONUS!

    • What’s important is the civics literacy of the rest of America. We survived the onslought of the last 16 years and we’ll survive Trump.

      • I like your earlier input Olly. My continual hope for Trump is not that he actually doesn’t a great administrative job, but he “blows the whole mess up” and exposes everything (it’s not important if it’s intentional, or the result of being delusional…). Got to get the light shined on all of this, and slamming the argument right out front about attacking free speech is the way to do it. I don’t know about this guy, but if you were serious about it, wouldn’t you just keep the quiet Obama-style grinding away at freedoms? Like I said, purposeful or not, just so it happens! It certainly seemed like he sold a bill of goods to the left in this, and they are the ones who would be the big losers (as illustrated by the Page video shown previously).

      • Stop fooling yourself; open your eyes! After 6 months he’s no better at being President, (mainly because that’s NOT why he wanted to get elected) but, he has managed to learn how to change current policies and procedures in order to keep things secret!
        You had better find out what’s been going on since he got elected. The level of corruption is just overwhelming, even for the press has trouble keeping up.

        I agree, “What’s important is the civics literacy of the rest of America.” Didn’t you notice that (nearly) 63 million American citizens just proved that they DO NOT understand the importance of American Constitution by voting for Trump!* Your statements proved your lack of understanding, too.
        Describing the Obama administration as an “onslaught” is strange but, comparing Obama to Trump in any way, shape, or form is really ignorant. There’s just no polite way to put it.

        I’m always open to learning something new. Can anybody tell me, with specific examples of wrong doing that I can verify on the web, why you would trash Obama?
        *(I’m not glorifying Clinton. In this election most Clinton supporters were voting for the lesser of two evils. Trump supporters, on the other hand, closed their eyes, ears, mind and hearts to what Trump was doing every day. They ignored warnings from hundreds of respected researchers, educators, lawyers, watchdog groups, legislators, other political figures, high ranking elected leaders FROM AROUND THE WORLD. Also, they ignored criticisms and all this proof presented by millions of fellow Americans, cast caution to the wind and praying for a modern day miracle and voted for Trump. Crazy-scary!

  4. ““Studies” activist courses too often are therapeutic. They are neither inductive nor Socratic, and they rarely teach facts, methods and means of learning without insisting on predesignated conclusions. Instead, the student should leave the class with proper group-think and ideological race/class/gender fervor of the professor — a supposed new recruit for the larger progressive project.”

    http://www.nationalreview.com/article/447323/berkeley-claremont-free-speech-violations-result-losing-university-principles?utm_source=social&utm_medium=facebook&utm_campaign=hanson&utm_content=potemkim-universities

  5. Someone quiz Trump on what the Amendments state. It’ll be really fun to watch. “Mr. Steak-Salesman, What is the 7th Amendment?” His reply, “It’s just tremendous, all of them. Wow, thank you. Great job.” Doesn’t have a goddamn clue.

  6. The 1933 Parallels:
    In 1933 someone burned down the German parliament bldg called Der Reichstag. The Reichstag Fire Decree was issued by the President, Von Hindenburg. The government used the Decree, which did away with civil rights, to go after the Communists and others. Hitler used the wave to come into power. He was elected. The war and the Holocaust followed. At the Nuremberg Trials one of the defendants confessed to journalists and others that he, Goebbels, set the fire.
    We had the Twin Towers terror events. They brought about The Patriot Act. It took longer but we have our Hitler elected into office.
    If you are a gypsy or a Jew then think about leaving the country before that Berlin Wall goes up and you can not leave.

  7. The libel laws are there to protect individuals and organizations from intentional, malicious info warfare attacks. I’m not a legal expert, but I believe a free democracy cannot survive if it becomes a cacophony of professional infowarfare, steeped in deceptive, propagandistic sources. Look around you. The sciences are fabulously productive and beneficial, but would they be with “anything goes” free speech? Look at courtroom procedings…..highly structured rules about what can be entered as evidence, and what the lawyers can say, and an oath of honesty imposed on witnesses, backed by threat of perjury conviction and imprisonment for deceiving the Court. Look at business fraud law….advertisers cannot say anything they want about their product…if it entails deceiving the customer, they can be sued. Look at drug companies….they cannot make product claims until they have actual proof of safety and efficacy backed by scientific data, and both the claims and data have been reviewed by the government.

    Our political system stands out as an outlier in its tolerance for infowarfare. Granted, there is difficulty in assigning responsibility for refereeing political speech to ward off deception campaigns. The process is all about choosing the referees, so who can stand above the process as both powerful and neutral in the outcome?

    My question is: If legal protections against malicious libel (info warfare) are not to be afforded to candidates for public office (which includes current officeholders), who in their right mind is going to step forward to run for office?

    A balance must be struck that prevents the national conversation from descending into a hell of organized info warfare, where organized campaigns of deception go unchallenged except to be countered with opposing info-warfare campaigns. Somehow standards-based journalism must prevail over trash journalism.
    Our libel laws need a close look, and a substantial debate. The assertion that public figures are exempt from the protections of libel laws is a dangerous assault on civil liberties and equal protection….it is a recipe for strangling the leadership pipeline.

    Audience abandonment of unethical, dishonest news sources is the best corrective. But, suppose the President used the bully-pulpit to ask audiences to abandon specific cable channels? In my mind, that is not any 1st Amendment violation. It is the way for elected leaders to “fight back” to tame media who are flirting with info-warfare under the cover of journalism.

  8. How ironic that today’s topic regarding the Sullivan holding comes after last evening’s showing of “Black Like Me” on TCM. This was the true story of a white journalist who took a drug that turned his skin dark, and who had his hair curled to kinky, so he could pass for black. The journalist then traveled to the Deep South to experience first-hand what life was like for a black man. He got chased by white teenagers driving a convertible and sprayed with whatever liquid they had in their hands, he couldn’t get a hotel room, so the black community provided him with a place to stay, he was called names, told that it was “white privilege” to use black women for sex without their permission–in fact, if they got pregnant, this would help with racial cleansing, he got routinely called “boy”, he was warned not to even look in the direction of a white woman, and the story goes on and on. Of course, Dumpster knows nothing about any of the background of how the Sullivan holding came about, and doesn’t care–he just knows he doesn’t like it when journalists criticize him, and he’s frustrated that he can’t sue the snot out of them to intimidate them into submission, like he did in the business world.

    Jonathan and some of his regulars strongly believe there is media bias against Trump. I personally think that to ignore the serious emotional problems and negative personality and character traits of Trump would be, itself extreme bias. Trump is simply not Presidential material, and every single day this maxim becomes truer. Does anyone really think he’s on an equivalent level, intelligence-wise, character-wise, knowledge of history and government-wise, or patriotism-wise as Lincoln, FDR, or Kennedy? He’s not. He is a spoiled, petulant child, reality TV star who obsesses about his image above everything else. That’s his real beef with the press–only Fox says nice things about him. All other media criticize him, and for valid reasons that he can’t really dispute. He doesn’t really trust anyone, so he surrounds himself with his family because they are financially dependent on him. Folks, it’s only going to get worse as time goes on.

    • I remember reading that book, I think it was about 40 years ago. Maybe more. Fascinating.

    • Natacha, the book was published in 1961. That aside, it’s a reasonable wager the following happened: (1) some of the incidents were fiction; (2) some were contrived – i.e. he waltzed into situations trolling for a reaction; (3) incidents were selected and discarded for the final version to promote a social narrative or generate spectacle (4) publishers and reviewers wouldn’t have bothered much about the book if it had been an ordinary piece of travel writing.

      I recall seeing some social survey research of a black sample in 1983 wherein they were asked a number of questions about their lives. One was along the lines of ‘have you ever been insulted because of your race?’ and another was ‘have you ever been discriminated against’? You’re asking a set of people whose median year of birth was around 1943 and of whom a majority would have had formative years in the South. Regarding responses, the ‘yes’ response was 59% and 40% respectively.

      You can also examine the statistical reports of the Bureau of Justice Statistics and the Uniform Crime Reports. White-on-Black crime is just not that common.

  9. This falls into joining the realm of the Democrats’ efforts to curtail the First Amendment to combat “fake news” and Hillary Clinton’s proposed blasphemy laws. In this, there has been a troubling trend in our country to curb our First Amendment, brining us more in line with the UK, where its citizens have been bridled. They are not free to speak their minds or complain about a great many issues, even reporting on crime, or else they will be criminally prosecuted or fined for “hate speech”, which is conveniently defined by the government.

    There have already been concerted efforts by government agencies for viewpoint discrimination. The IRS, DOJ, NSA, and EPA have all become politically weaponized. This is yet another step in that direction, a direction a majority opposed when they rejected Obama’s policies past November.

    President Trump is wrong on this issue. Not only is he wrong on his views of Free Speech, he is tactically wrong in giving the hard Left a platform to stand upon. Most of us have grown tired of the obstructionism, looting, burning, and basic failure to accept the results of an election. The far Left has shown itself to be unhinged anarchists unless they force their way upon others. So when Trump’s administration even hints at eroding the First Amendment, this actually gives fuel to their lagging fire.

    We already have slander and libel laws which should be sufficient. And as Mespo stated, we are lucky enough to have a great many news and grassroots journalism sites that chip away at the Mainstream Media Monolithic party mouthpiece.

    Conservatives have failed for decades to communicate their positions, values, policies, and basic party reasoning to the masses. Once the Mainstream Media openly became a DNC machine, conservatives have helplessly wrung their hands at how to fight the constant slanderous attacks against them. They have permitted the Left to define them, which is why more than 8 people in the world actually believe that only Democrats care about women, families, minorities, and the poor and that everyone else is evil/racist/bigot/etc. Very few actually research far Left policies and realize that the end result typically harms those they purported to help. Or realize that they have never quite shaken off their threats against minorities who don’t vote their way, or their love affair with fascism. The answer is obviously not to strengthen libel laws at the expense of the First Amendment, but to do a better job at communicating with people who get their information from the mainstream media. Figure out how to go around the propaganda machine and get your message out; don’t weaken the Constitution.

    • “This falls into joining the realm of THE DEMOCRATS’ efforts to curtail the First Amendment to combat “fake news” and Hillary Clinton’s proposed blasphemy laws.”
      _____________________

      Dingdingdingdingding!!!!

      And one comment into the thread, we have a WINNER!

      Now everyone chant in unison…

      Da Libruls! Da Libruls! Da Libruls! Da Libruls! Da Libruls! Da Libruls! Da Libruls! Da Libruls!

      Some of you just can’t help yourselves, can you?

      The Trump Administration is SERIOUSLY talking about doing away w/ the First Amendment because the ‘failing media’ hurts the Preznit’s feelings… aaaaannnd… right away, it’s Da Libruls fault!

      Boy some of you are FUNNY!

      • Bwahahahah!!!

        Everyone knows it’s the “liberals” that are most aggressively defending the 1st amendment throughout the land. Damn those conservatives anyway!

    • Another newsworthy item is revealed by “CLINTON CASH” author Peter Schweizer. According to Schweizer, J. Kushner, son-in-law, to President Trump, Kushner has “ties to liberal bankroller George Soros.” If, indeed, true, as stated by Schweizer, this is a “major, major problem.” Obviously, failing to “disclose” business ties with Soros is more than newsworthy! It seems, in politics, anything & everything is likely possible or probable.

      • What are the ties? You state it’s newsworthy and then say “if, indeed, true…” Wouldn’t it be newsworthy AFTER is was a)proven to be true and b)a major, major problem?

    • Absolutely, deserving of a capitalized WELL SAID! Also, applaud Professor Turley’s compelling statement “amending the First Amendment for presidents and their aides to allow them to sleep better is precisely the danger it was meant to avoid.” Thus, on this issue, I depart from President Trump. As noted, being “hyper sensitive to criticism” is not justification for “changing libel laws.”

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