“The very basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.” – Thomas Jefferson, 1787
In light of the current sociopolitical climate, many Americans might be inclined to lump journalists into the same category as used-car salesmen, lawyers and lobbyists –– professions known for a systematic tendency to lie and mislead. In fact, even our president has coined and, some might argue overused, the term “fake news” to refer to what he sees as false news stories intended to influence and reaffirm political views. While this type of “reporting” does exist and serves to further political agendas through biased, inaccurate, poorly evidenced and unbalanced storytelling, not all news is fake news.
Recently, President Donald Trump commented on this issue, taking it one step further than usual by bringing libel laws to the forefront of the discussion and culpability.
“Our current libel laws are a sham and a disgrace, and do not represent American values or American fairness. So we’re going to take a strong look at that. We want fairness. You can’t say things that are false, knowingly false, and be able to smile as money pours into your bank account … I think what the American people want to see is fairness,” he said.
As journalism students, who have spent countless hours studying libel law and media ethics, this statement strikes us as erroneous in more ways than one.
Libel is a type of defamation law, which means its offense lies in the damaging of another’s reputation. Libel is the publication of false information that could harm someone’s public image. Slander is similar, but refers to spoken, uneditable defamation rather than written and published information. Libel law serves an invaluable purpose in American society. It keeps journalists accountable and diligent in their reporting. It protects the public image of citizens from being tainted by statements made about them.
Libel laws are largely a matter of the states’ jurisdiction. While the Supreme Court has made some rulings relating to libel law (more on that in a moment), the federal government does not explicitly provide legislation relating to libel except for New York Times Co. v. Sullivan and cases that built on that ruling.
Trump’s objections to libel laws are founded in a 1964 Supreme Court ruling on a famous and landmark libel case which constitutionalized libel law, New York Times Co. v. Sullivan. In this case, the court’s opinion essentially explained that free speech is worth the risks, especially when it pertains to criticizing public figures and public institutions like those in political office. Journalists must be able to make mistakes, like all humans.
In the unanimous decision in New York Times Co. v. Sullivan, Justice William Brennan emphasized “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Therefore, public figures must not only prove that information in a libel case is false and defamatory, but also that it was published with “actual malice” –– that is to say, that the publishing entity knew the information was false, but published with reckless disregard for the truth. Trump, as a public figure, would have a much more difficult case to make against the press if he were to sue for libel because he would have to prove actual malice. So, Trump is right when he says people can’t just make knowingly false claims. Claims like Obama’s birth certificate being fake. Claims like the family-based immigration visa process being a free-for-all. Claims like the largest tax cuts being made under the Trump administration. These would all be false claims –– knowingly false claims.
There is perhaps nothing more essentially American than the First Amendment. It draws inspiration from our Founding Fathers, who fought for the right to criticize their institutions and to call out public government figures for their injustices. It encourages the press to assume its role as a watchdog over the U.S. government without fear of unfair prosecution. Likewise, there is perhaps nothing more essentially American than libel laws. They recognize the value of the press while allowing them to make mistakes, but providing a safeguard for the public to keep them accountable. Yes, we want fairness. But, we want openness and transparency, too. We want our press to have the ability to the freedom of speech sets America apart. It allows journalists –– and all other citizens –– to criticize their governing institution and voice their concerns in order to make America the greatest it can be.