Below 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.