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.
76 thoughts on “A SHOWING OF ACTUAL MALICE: THE WHITE HOUSE “TIRES” OF THE FIRST AMENDMENT”
What the Sullivan court did was to immunize the press from its own gross negligence. We’ve seen the result of that: media hire political hacks then look the other way as they skew, contort and blatantly lie to the public in order to advance their party agenda. Back in the Sullivan days, there every town had its own paper, there were only 3 national news outlets, and AP and Reuters wire services. Now, we have thousands of sources for “news.” So, it seems to me a good idea to hold everyone to the same standard. If The NY Times calls me a crook, I have to just live with the bad PR. If I call The NY Times a crook, they can sue me for libel. Where’s the sense in that? The media are no
longer delicate flowers. They are perfectly capable of policing themselves and they ought to be required to. I mean: was it so crucial to democracy that Melanie Trump should be labeled a prostitute? No. And no one thought that it was, but this kind of treatment by the press “chills” the kind of person who
Is willing to stand up to it and run for office. Viz: our last 2 presidential candidates!!
“What the Sullivan court did was to immunize the press from its own gross negligence.” This is an interesting statement. It would seems untrue, but is it?
For any recovery against a media defendant, actual malice must be proved. Actual malice means an actual knowledge of the falsity of a media defendant’s statement or reckless disregard for its truth. Sullivan insulates the press from its own negligence, but certainly not “its own gross negligence” against a media defendant because gross negligence is effectively identical to a reckless disregard.
The standard of proof generally in civil court is a preponderance of the evidence (more likely than not). The standard of proof for actual malice, however, is “convincing clarity,” i.e., a high degree of awareness of probable falsity, which can very difficult to meet.
Because the standard of proof is higher for actual malice, your statement is probably true in practice. On the other hand, I don’t know that a media defendant would want to gamble that the evidence only shows negligence with convincing clarity. Who knows though, and perhaps they do?
On the flag burning issue and as I’ve said many times this isn’t free speech IMHO, it’s an action against the country. Akin to throwing red paint on the Jefferson Memorial or hanging a “kick me” sign on the Tomb of the Unknowns. While I do support a broad interpretation of the First Amendment, there are bounds beyond just yelling that famous word in that famous crowded theater.
–2 = ++8. Not bad 🙂
The problem and glory of the First Amendment is that it gives the media free rein to trample anyone they choose. That’s why I like alternative media and a lot of Americans agree with me. It does Balkanize information gathering and leads to some disinformation but it denies the main stream media the monopoly they crave.Once again the solution to bad speech is more — not less — speech. Trump should know this. Nobody uses the tools of alternative media more than he.
” The inner censor of the mind of the true believer completes the work of the public censor, his self-discipline is a tyrannical as the obedience imposed by the regime, he terrorizes his own conscience into submission, he carries his private iron curtain inside his skull, to protect his illusions against the intrusion of reality” Darkness at Noon 1940. Arthur Koestler.
I”m not asking you to support anything other than our Constitution. Every citizen needs to make that commitment. You don’t have to support anyone’s particular idea. You are required, if you care about the Constitution, to support everyone’s right to free speech whether you support their ideas or not.
The difference I see between Trump and Obama/Bushco is that Trump is openly saying what has been going on for quite some time now. It is clear that going back to Clinton the First (and beyond), the “govt.” has been trying to figure out how to either get away with breaking the law on their own behalf and the behalf of their corporate masters or they have been trying to openly get rid of the rule of law.
In a way, I am glad that Trump and his people are very transparent about what they are trying to do. It could make it easier to oppose that way. As others mentioned above, the administration and part of its ruling entities (CIA and FBI in this case) are actively seeking a way around the Constitution in order to imprison or kill Assange and crush wikileaks. Barret Brown was just kidnapped last week, one day before he was to give an interview to PBS. Because of money and connections, he was released. However, it was a lesson to him and other journalists who say the “wrong” things. In every way, our rights have been pretty much gutted. I sick and tired of it!
The other thing I’m sick and tired of is citizen hypocrisy. Paul, the things you wrote above are simply the mirror image of the Berkley students ideas. Neither of you supports free speech for all. You are breaking faith with our Constitution. Stop it!
Every citizen of this nation needs to support our Constitution. It’s because we have allowed our own ideas of what we want to hear to be the basis of support or condemnation of free speech rights (not transitory conveniences) that we are losing those rights. Support for our rights is not like going to a grocery store and picking out the foods of our choice. This is a moment of history which calls for each person to stand up for the rights of everyone, whether we like them or not.
There are too many people who simply love to align with the powerful. Instead, we need to align with our Constitution and support everyone’s rights. We have a guaranteed loss to everyone if we can’t see past our own petty interests and rise to become someone much better and stronger.
Jill – I was a student during the Berkeley free speech movement and did not support it then. Why should I support it now?
“Smith blames parents and social institutions such as public schools, churches, and colleges for not teaching young people how to sort through competing moral claims. This failure leaves millennials adrift, contributing to their delayed adulthood and cowardice regarding religion. Smith coined the term “moralistic therapeutic deism” to describe millennials’ basic disposition to think of God (and government) as a variation on Santa Claus.”
This is a brilliant move by this administration. The 1st amendment has been reported to be under attack by this blog “here and here and here and here and here and…” Has anything gotten better? Hell no. So let’s raise the debate to the highest level in the land. Nothing will educate the nation about their natural rights than a WIDE OPEN debate about losing them.
Don’t look now but the Trump Presidency is forcing the progressives to do something conservatives hadn’t even imagined. They are invoking the rule of law and the separation of powers. Now Trump will get them to open up debate on our Bill of Rights. Trump will lose gloriously and the sweet irony is that progressives will also lose as rights are affirmed despite their 100 year war against them. 🙂
“How that gets executed”
Freudian slip? How the 1st Amendment gets executed?
How “it” gets executed.
By drone! In both senses of the verb.
Is Congress likely to support such a Constitutional Amendment? Where do they draw the line?
The President is trying to “replace the Bill of Rights with fascist precepts lifted verbatim from Mein Kampf.”
Oops, that’s what Rep. Bill Clay said about Reagan c. 35 years ago.
No. Not this Congress. Mitch McConnell is very strong on free speech issues. He went against the wishes of his own party and sued to try to stop McCain Feingold. He lost at the Supreme Court. No attempts to change the First Amendment will see the light of day in the Senate as long as he is Majority Leader.
-It’s hard to imagine ANY Congress getting 2/3 of both Houses to repeal/ replace the First Amendment.
Then 3/4 of the states to agree to the repeal.
When Jonathan Karl asked the question of Priebus, my take on it was that Karl was thinking “is he (Priebus) going to bite?”.
I’m not sure if Priebus was “playing along”, or dumb enough to think that it is actually “doable” to repeal the First Amendment.
I’ve seen enough of ABC’s Karl to think he had a mischievous “are you going to bite, sucker?” motivation in asking the question.
Not in this universe. But Congress is only part of the procedure. At least 38 states must also ratify the proposed amendment. All this “changing the libel laws” is so much blather, as any 1L law student could tell you.
The above was to zrants.
New York Times v. Sullivan was a gift from one fraction of the New Class to the other. It is neither needed nor desirable to secure the goods referred to in the 1st Amendment.
The moderator takes for granted the notion that the appellate judiciary (with the help of their shallow smart-assed clerks and of the law professoriate) should have carte blanche to define what is an is not in keeping with the constitution. In truth, they’ve engaged in such misfeasance over more than 70 years that this assertion is contemptible. Whatever Trump does to law professors and appellate judges (short of imprisoning or killing them) is legitimate.
Any damage being done to the 1st Amendment is being brought on by the media itself.
Our so called press fails us more and more every day with Fake News and almost 100% cheerleading the Democrats. Then they cry foul when exposed. They practically buried any negative story on Hillary.
Then there is this…..
Anon, Thanks for this Susan Page clip. Are you familiar w/ Sharyl Atkisson? She has been beating this drum since the NSA hacked her computer for reporting on the Obama Administration. She has a book coming out as well.
Oh let’s face the music, out Bill of Rights is being shredded right before our eyes. Minorities have rarely had it apply to them in the last 2 hundred years. It was a great experiment for this Republic will it lasted.
Former Governor Jesse Ventura said it well after he came into office….
“It’s great to be King”.
This is the height of hypocrisy on the part of the idiot Trump and his mutts. Read the Washington Times or Fox News and you get even more biased and ‘deplorable’ media coverage of all the enemies of the oligarch aspiring dictator Trump. The incessant lies and blaming of anything that disagrees with this buffoon by the rug himself and/or hack right wing journalists prove more than anything coming from the left, that the first amendment is alive and robust. The telling aspect of all this is that Trump is so insecure and hollow that he can’t take what he has been dishing out for so long. If it is going to be made a crime or a pursuit in civil court to dis an opponent then the idiot President will be the one with the most to lose.
Oh cry us a river. The Clinton dynasty ‘pay for play’ was a legalized mafia.
Divide and conquer is the oldest game in the book. And we all bought into it.
You must have had your head up where the sun don’t shine if you missed the all time illustrative example of slander and lies, which is still going on. Rewind any one of Trump’s speeches and the worst of the worst is there to see. The only thing that surpasses his lies and BS is his hypocrisy. If you can’t take the mud slinging then get out of the swamp.
Well said, as usual.
Again, your vitriole exposes you. No one takes you seriously. Go kick your dog instead.
Trump isn’t the only one looking at 1st amendment rights & journalism
Is WikiLeaks journalism or something else?
FBI chief knows ‘intelligence porn’ when he sees it, and it’s WikiLeaks
“There’s nothing that even smells journalistic about some of this conduct,” Comey told a hearing of the Senate Judiciary Committee.
It was journalistic when it accused Hillary and the DNC of corrupting the primaries. Then it went astray and continued telling the truth even after Trump was elected.
People should know when enough is enough already.
BTW, the Constitution is what the SC says it is today, not yesterday, not tomorrow.
Precedent sucks. Continuity is for loosers (Except when you’re a gigantic transnational company).
You’re on a roll Paul! 🙂
Just because Scalia said something does not mean I agree with it. The original decision was written by a liberal court and other courts have stood behind it. I, like Trump, think burning the flag (except as designated by the government) should be a crime. The CURRENT Supreme Court disagrees. With Kennedy off the court, the next SC might change the rules a lot. And with Kennedy gone, Ginsburgs vote is not worth spit, so she might actually retire to New Zealand. That adds more to the fun.
All this is assuming, God forbid, one of them should die.
Not only that, but everyone knows the truth is what the President says it is, so Trump should win a lot of those libel suits. Hope they fit.
I thought Obama had already settled this issue by simply declaring anyone who disagreed with him a terrorist (what was it, every Tuesday?) and sending out a drone to resolve any failures to communicate that point, (two if a wedding was involved, three if there were infants present that could be blown to bits).
Didn’t Trump get the memo? He’s God. He don’t need no stinking libel suits.
On the subject of a god and the First Amendment, I heard on NPR this morning that the Drumpf is having an executive order drafted which requires the IRS to use “maximum discretion,” whatever that means (although I think it means “don’t do it”), in considering revocation of tax-free status of 501(c)(3) [religious, charitable, scientific, literary, or educational] nonprofit organizations which endorse or oppose political candidates in violation of the 1954 Johnson Amendment to the Internal Revenue Code.
He’ll be visiting Bob Johnson and Liberty Universities regularly I’d guess from now until November 2020.
I think that burning a copy of the Constitution should be a crime.
I think that we need to put Trump’s photo on rolls of toilet paper.
I think that Obama needs to make more money so that he can build his library in Chi Town.
I think that JT ought to take time off from law professor duties and try a jury trial.
Real lawyers do not call themselves “professor”.
Jack Ruby – could not agree with you more.
Real lawyers call them professors, however, as a sign of respect for their ability to become one and their lack of familiarity, regardless of whether they agree with their politics.
Along the same lines, I’ll never forget the time when Johnny Cochrane, an undisputedly great trial lawyer in an LA courtroom, bashed Harvard Law’s Professor Arthur Miller during a roundtable discussion on training law students. He countered a statement from Miller that he didn’t like with, “For those of us who practice law . . .,” and confirmed what a sophomoric LA egocentrist Cochrane was.
No MSM coverage of Emmanuel Macron’s apparent tax evasion:
Sweet! Love those “live” drawings, particularly the symbol they make that suddenly becomes clear at the end.
Why should he concern himself with someone’s opinion so greatly, it necessitates changing the law to accompany this pet peeve?
Since egos are involved, a quote from the late Saddam Hussein actually has some merit, especially in this case:
Let the monkeys laugh. The lion does not care about a monkey laughing at him from a tree.
He’s actually thinned skinned which is a bad trait for someone who throws such a wide loop when speaking of his opponents.
Interesting that you would use this quote. A woman was just prosecuted for laughing at the AG during his confirmation hearings.
No, actually she wasn’t “prosecuted for laughing at the AG”. But hey, don’t let actual facts ruin your great narrative.
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