President Threatens Free Press in Libel Discussion

In a Cabinet meeting earlier this month—which the press was actually invited to—President Donald Trump called America’s libel laws a “sham and a disgrace.”

“[The laws] do not represent American values or American fairness,” he said. “You can’t say things that are false—knowingly false—and be able to smile as money pours into your bank account. We are going to take a very, very strong look at that. And I think what the American people want to see is fairness.”

The timing of these comments comes, of course, with the publication of Michael Wolff’s so-called tell-all “Fire and Fury,” which paints an unflattering view of the Trump administration.

This isn’t the first time Trump has sounded the alarm on libel. Prior to these recent remarks, Trump said during his campaign on Feb. 26, 2016 in Fort Worth, Texas, that he would “open up our libel laws so when they write purposefully negative and horrible and false articles, we can sue them and win lots of money.”

Later, in March 2016, he tweeted, “The failing @nytimes has disgraced the media world. Gotten me wrong for two solid years. Change libel laws?”

For those who don’t attend the annual Elm boot camp and don’t have the pleasure of sitting on the porch of the Literary House as our advisor, Melissa McIntire, discusses libel with our lawyer friend, here is a crash course in libel. Libel (and slander) are the “legal claims for false statements of fact about a person that are printed, broadcast, spoken, or otherwise communicated to others,” according to MediaLaw.org. Libel is written falsehoods; slander is spoken.

MediaLaw.org goes on to say that “the false statement must be defamatory, meaning that it actually harms the reputation of the other person, as opposed to being merely insulting or offensive.” Beyond just being defamatory, libelous claims also have to be false.

There are four components someone must have to prove defamation, according to the Student Press Law Center: publication, identification, harm, and fault. Under current libel law, each must be proven.

Let’s say that a certain remark ticks all these boxes: it’s a printed claim, provably false, and is defamatory. In the United States, defamation law is governed by the state. According to the People’s Law Library of Maryland, Maryland “recognizes the distinction between defamation per se and defamation per quod” (basically, self-evident vs. requires proof).

In 1964, the case of New York Times v. Sullivan set the precedent for libel law. In a full-page ad, purchased by civil rights activists, Police Commissioner L. B. Sullivan—and the police department of Montgomery, Alabama—were criticized for the treatment of protestors. While many of the statements were accurate, some were false, according to USCourts.gov.

Ultimately, the Supreme Court ruled in favor of The New York Times because “The Court said the right to publish all statements is protected under the First Amendment. The Court also said in order to prove libel, a public official must show that what was said against them was made with actual malice,” according to USCourts.gov.

So, when Trump says that he wants to change libel laws, what does that even mean?

Looking at Trump’s above sentiments, we don’t really see any plan to do that. “Open up” is a vague statement that doesn’t particularly mean anything, as is “tak[ing] a very, very strong look at that.”

As mentioned earlier, the precedent case from 54 years ago sided with the newspaper because it aligned with First Amendment rights. According to PoltiFact, “there isn’t one single law that could be changed, other than the First Amendment and the protection it gives” and, as noted above, there isn’t a federal libel law.

Hypothetically, Trump could overturn the Supreme Court case and could amend the Constitution but, as I’m writing this during a government shutdown, I don’t so much see that happening.

But by questioning our libel laws because the articles may paint an unflattering, or critical, picture of public figures, Trump is likewise, perhaps without intention, questioning our First Amendment. This amendment promises freedom of speech, freedom of the press, freedom of religion, the right to assembly, and the right to petition the government, and threatening that gets into some shaky territory. (Like, censorship, which is not so good for a democracy.)

So, because there are certainly some wild stories out there—totally false, with the intention to defame someone’s character—it’s always important to check the source from which stories stem. Search the key facts, people, and images to see if the story appears elsewhere. Consider the tone of the piece—whose viewpoint is missing? Who gets something from this story? That can help you sort through the fake news, while also showing you if something is libelous or just critical. It’s important to note that just because stories based in false statements circulate, that doesn’t mean that we should just alter the First Amendment (and free press). We just have to be aware consumers of what we’re reading.

Every year, as a writer, then as an editor, and now as editor-in-chief of The Elm, I have gotten the same document from The Elm’s advisor—the Society of Professional Journalists Code of Ethics. It tells journalists to seek truth and report it, to minimize harm, to act independently, and to be accountable and transparent. That’s the goal of true journalism—not to “say things that are false—knowingly false—and be able to smile as money pours into your bank account.”

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