Did the U.S. Supreme Court go too far in its rationale for free speech and press when ruling for the New York Times in a landmark libel case brought by a public official 56 years ago?
President Donald Trump believes so and he now seeks to narrow the latitude of the press and the public’s constitutional protections in three defamation cases filed recently in federal courts against the New York Times, Washington Post and CNN.
The lower court outcomes will doubtless find their way to the Supreme Court in an effort to fulfill Trump’s aspiration to change federal libel law. In the meantime, the president can boast during his campaign that he’s going after the enemy press.
News outlets big and small have enjoyed the body of law that has grown up around Times vs. Sullivan, the 1964 libel case brought by an Alabama police commissioner after the newspaper published an advertisement about the mistreatment of civil rights demonstrators. The ad included minor errors such as Martin Luther King being arrested seven times instead of the actual number of four and the demonstrators singing the “Star Spangled Banner,” not “My Country ‘Tis of Thee.”
The Alabama courts found in favor of the police commissioner but the Times appealed the decision to the Supreme Court, which overturned the finding on the ground the First Amendment restricts the ability of public officials to sue for defamation.
This week news organizations across the country are celebrating “Sunshine Week,” a time to inform the public about the value of government transparency and the watchdog role of the press.
But the public should also celebrate the protections of the First Amendment that permit citizens to engage vigorously in civic affairs and speak their mind about public officials.
The Supreme Court ruling in the Times case established the actual malice standard which requires a public official to prove a citizen or news organization knew damaging information was erroneous and published it anyway. Or recklessly disregarded whether the information was true or not.
This standard was later expanded by the courts to include celebrities and other public figures.
Trump has chafed under the legal principle, vowing to change it through the appointment of conservative Supreme Court justices that would restrict the protections of free speech and free press.
But as recently as three years ago, the court upheld the constitutional concept in a trademark case brought by an Asian-American rock band named the “Slants.”
“A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all,” wrote then Associate Justice Anthony Kennedy. “The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”
President Trump considers the press, and its constitutional protections, contrary to his interests when news and opinion coverage are unfavorable. Other presidents have felt similarly. But they did not seek to overturn those protections with lawsuits challenging press freedoms.
Nor should Trump. The Founding Fathers adopted the First Amendment when a free-wheeling, raucous and highly partisan press existed in America. Yet they realized it offered protection against censorship and corrupt government.
Trump is different. He is determined to take down what he calls the “enemies of the people.” His policy of winning no matter the consequence allows no thought of failure.
Thus the defamation lawsuits filed by his campaign against the New York Times, Washington Post and CNN for opinion columns accusing Trump of inviting Russian assistance in the 2016 election and possibly in the upcoming presidential election.
The Trump lawyers claim they have much evidence of bias and fake news reporting against Trump by all three news organizations, suggesting they knew the opinion columns were false on the matter of soliciting Russia assistance and printed them anyway.
Fortunately, Trump has a high bar to get over to prove his case as the highest public official in the land. He has no qualms about using his right to free speech to scorch rivals, but objects when others turn the heat on him.
That’s the kind of vigorous give-and-take the First Amendment is intended to protect. For presidents, for the public and for journalists.
Bill Ketter is the senior vice president of news for CNHI. Reach him at firstname.lastname@example.org.