Freedom of the Press (to Slander, Publish Falsehoods and Lie?)
Each day falsehoods, inaccurate information, fabrications and outright lies are published in the media about public officials and ordinary citizens who happen to end up in the public spotlight. The falsehoods are then republished. And republished. And republished. Spreading like a virulent cancer, they can destroy a person’s reputation and career, subject them and their families to physical attacks, vicious accusations, and intimidation. It is no longer unusual, after such information is published, to see crowds of thugs, show up at an official’s home, waving signs, blowing airhorns, throwing destructive objects, pounding on doors and ringing doorbells night and day.
As to the publication of the falsehood itself, there seldom is an apology, rarely a correction of the record, never any attempt to take measures to insure it never happens again. There are no standards. Indeed, there is an arrogance here. An arrogance born of the repeated abuse of a judge created rule, once thought necessary to protect the press, but which has long outlived its usefulness.
Every state in the Union has laws which make Slander, that is uttering false and damaging information about a person actionable. The person uttering or publishing the false information can be sued and be required to pay damages and issue corrections. When Slander is reduced to writing and is published, that makes it Libel and liability is incurred every time the false and damaging information is republished and by every person who republishes the falsehood.
And this is nothing new. It came to us from the Common Law and was in place when the Constitution was enacted and has been with us from the beginning. Slander and Libel have never been protected by the First Amendment. That is until 1964 when the Supreme Court decided the case of NY Times v Sullivan.
Our frame of reference for newspapers and journalists like so much else these days is dated. Tulare County is a microcosm of the Press nationwide. Once the Visalia Times Delta and the Tulare Advance Register were fiercely independent local newspapers. The publishers, the reporters, the editors were local, often involved community affairs, and, importantly, reflected the norms and values of the community.
But then the nature of the press changed. Local news outlets like our local papers were gobbled up by large national conglomerates. Things didn’t improve. They got worse. The local newspapers have little heft, and the online presence is worse. What passes for news is old and largely irrelevant to the local citizenry. The stories are picked off the internet and are frequently dated. The editorials are not written locally about local issues, but largely cut and pasted from somewhere else in the State or on the other side of the country, depending on the daily interest or pique of the mysterious person or persons who decides editorial policy from day to day. Nowadays one can be better informed about what is happening in Visalia or Tulare by reading the weekly (and still local) Exeter Sun or listening to the Hopper Podcast out of Porterville.
Furthermore, Journalists today are among the most distrusted of the professions. They rank just above telemarketers, advertising practitioners and car salesmen. Even below lawyers and that is saying someting. It is reported that trust in the news media is down partly due to perceptions that they are more than willing to report stories before facts are verified, are biased and lack transparency regarding increasingly questionable sources.
Sadly, the press of old has largely become large, faceless, uncaring corporations who save on the labor costs of local reporters, instead opting to pay inflated salaries of pundits who seldom leave the studio.
In assessing the NY Times case and the reasoning behind it is good to keep this modern nature of the Press in mind. No longer are they small operations who could be crippled by the legal costs of having to defend against lawsuits for careless and inaccurate reporting. Instead, they are fat and rich national and multinational businesses who can afford to employ legions of the finest legal talent available to crush any little pipsqueak who has the audacity to sue when his reputation has been destroyed by careless reporting.
The New York Times Case
New York Times, decided in 1964, involved a full-page advertisement soliciting donations for the civil-rights movement and the legal defense of Dr. Martin Luther King, Jr. It made a number of claims about the conduct of public officials in Alabama. The Times made no independent effort to confirm the truth of these claims, and, it turned out, they contained numerous inaccuracies. The claims were patently false. The Times eventually was forced to retract the advertisement.
Some of the victims sued and won, including a verdict in the amount of $500,000 for one of the public officials slandered in the ad. The State Supreme Court upheld the verdict. The United States Supreme Court reversed on the grounds that while everyone knew whom the advertisement was slandering, the public official’s actual name was not used. As Supreme Court Justice Clarence Thomas recently observed, “This holding was sufficient to resolve the case.” However, the Court went further, and addressed “the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.”
And as so often happens when the Court when it moves away from law into policy, it all went wrong.
The Court went on to promulgate a “federal rule” that “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” “Actual Malice” is a standard legal commentators universally agree is almost impossible to meet.
In subsequent cases the Court promptly expanded the Actual Malice rule to all defamed “‘public figures,’ “which it defined to include private persons who “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”
As Justice Thomas said, New York Times was “the first major step in what proved to be a seemingly irreversible process of constitutionalizing the entire law of libel and slander.”
Was this new rule required by the Constitution?
None of the decisions expanding the rule made a sustained effort to ground their holdings in the Constitution’s original meaning. As the Supreme Court itself acknowledged, “the rule enunciated in the New York Times case” is “largely a judge-made rule of law.”
In fact, Justice Byron White, the Justice who wrote the majority opinion in New York Times, eventually, after grappling with the historical record, concluded that “there are wholly insufficient grounds for scuttling the libel laws of the States in such wholesale fashion, to say nothing of deprecating the reputation interest of ordinary citizens and rendering them powerless to protect themselves.”
As the Justices noted, the Common Law of libel at the time the First and Fourteenth Amendments were ratified did not require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages. Typically, a defamed individual needed only to prove “a false written publication that subjected him to hatred, contempt, or ridicule.”
In fact, far from increasing a public figure’s burden in a defamation action, the Common Law deemed Libels against public figures to be, if anything, more serious and injurious than ordinary Libels. As stated in the Blackstone commentaries “Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man.” In fact, the Common Law defined Libels as “malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule.”
Libel of a public official, at Common Law was deemed an offense “‘most dangerous to the people, and deserving of punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.’”
This is worth considering. Is there a wisdom here that we may have foregone in our insatiable hunger to bring the great leaders of our society down?
Justice Thomas pointed out that public debate of the issues were still protected, but “Before our decision in New York Times, we consistently recognized that the First Amendment did not displace the common law of libel.” Quoting another justice who considered the matter, he explained, “The liberty of speech, or of the press, has nothing to do with this subject. They are not endangered by the punishment of libelous publications. The liberty of speech and the liberty of the press do not authorize malicious and injurious defamation.”
After the opinion in which Justice Thomas called for a re-examination of NY Times v Sullivan, a respected Senior Justice from the influential D.C. Circuit Court of Appeals, took the matter a step further by penning a dissenting opinion that argued how the New York Times case contributed to the blatant bias that has developed in the National Press.
Justice Laurence Silberman began by acknowledging that Justice Thomas has already persuasively demonstrated that “New York Times was a policy-driven decision masquerading as constitutional law.”
He reiterated that “The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication. As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth.”
“But”, he said, “new considerations have arisen over the last 50 years that make the New York Times decision a threat to American Democracy. It must go.”
He stated what to him seemed obvious, “There can be no doubt that the New York Times case has increased the power of the media. it allows the press to cast false aspersions on public figures with near impunity.”
And he observed something else that is painfully obvious to the rest of us, “The increased power of the press is so dangerous today because we are very close to one-party control of these institutions.”
As to the impact on society he says:
“The New York Times rule thus countenances two evils: first, the stream of information about public officials and public affairs is polluted and often remains polluted by false information; and second, the reputation and professional life of the defeated plaintiff may be destroyed by falsehoods that might have been avoided with a reasonable effort to investigate the facts. In terms of the First Amendment and reputational interests at stake, these seem grossly perverse results.”
His closing remarks are worth long sober reflection.
He wrote, “There can be little question that the overwhelming uniformity of news bias in the United States has an enormous political impact . . . It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news.”
And finally he warns, “The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness—if not eagerness—to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.”
Conclusion:
Would it be such a bad thing to use the laws of Slander and Libel to encourage the media to slow down a bit? To make them consider what they are about to publish and take steps to insure it is the truth? Would be a threat to the republic to make them consider whether it is worth the risk that the information could be false, and if they take that risk require they pay a penalty for mistakes that hurt human beings?
And shouldn’t the same apply to those who republish and repost falsehoods? Should they not be made to consider the truth of the information they are about to republish? To take the time to consider the basis for the story, to check out the information?
Afterall, people’s lives are involved here. And there is no constitutional right to Slander and Libel and destroy reputations.
The press too should be willing to pay for their mistakes, the same way other people pay for the damages they cause through their negligence, their failure to exercise the duty of due care every citizen owes to every other citizen.
For more writings by Phil Cline, visit philcline.com