The American Revolution came as a result of a nation and a people refusing to live in tyranny, oppression, and fear. Its founders not only revolted against a tyrannical empire, but revolted against the very idea of the role of government. They believed in a government ruled by the people and a land where citizens aren’t afraid to criticize their leaders.
This belief continues today as journalists and news organizations across the U.S. seek to provide an independent check on those in power. Yet with the pervasiveness of misinformation and the dawn of the “Fake News” era, news media outlets are having a hard time securing trust with the public. Many Americans, including the president and his supporters regularly label the results of rigorous investigations as fake news. But the public denunciation isn’t enough. Over the years, President Donald Trump has filed various defamation lawsuits against several major news outlets such as the New York Times and the Washington Post.
After these lawsuits failed, President Trump has pledged to “take a strong look at our country’s libel laws, so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts.”
But will his efforts pose a threat to the First Amendment? Will he be able to succeed? Stricter libel laws threaten freedom of the press because they can hinder the marketplace of ideas, stifle democracy, and instill fear in those who seek to speak against public officials. Ethical guidelines, not legal regulation, help a free press foster greater public trust and minimize falsehoods.
The Tort of Libel and the First Amendment
Libel is a false statement expressed by print, writing, or any communication embodied in physical form that is injurious to a person’s reputation. It protects individuals from having their character injured under false pretenses. The strictness of libel laws are determined by states, and there are no federal libel laws. In order for the plaintiff to be favored in a libel case, several criterion must be met, not the least of which is fault. A plaintiff needs to prove that there was some sort of wrongdoing (recklessness, negligence, malice etc.) within the published speech. In the early days of common law libel, a plaintiff could win a case without providing that there was any wrongdoing, even if the defendant meant well.
This “liability without fault” raised First Amendment issues. Luckily, the 1964 Supreme Court case New York Times v. Sullivan introduced an important step in the evolution of libel that clarified the issue of fault. They affirmed that an “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ they need…to survive.” Additionally, the court introduced the rule of actual malice, a fault that is “knowledge that [a statement] is false or… reckless disregard of whether it was false or not.” From now on, plaintiffs who were public officials and public figures had to show courts that the defendant acted with actual malice in the published statements made about them. This set a happy precedent for those in the media writing on those in the public arena.
Hindrance and Fear
Trump’s “closer look” is highly unlikely as his powers have no sway in the Supreme Court or state capitol buildings. Theoretically, Trump could encourage state lawmakers to create stricter libel laws or sway Congress to pass federal libel laws, but these options are less than likely as Trump’s approval ratings continue to grow more and more partisan. Supposing he could, however, would set a dangerous precedent for journalists.
Beyond being unconstitutional, stricter libel laws would stifle public discourse, hinder the marketplace of ideas, and instill fear within journalists. John Adams warned Americans of governance by fear in his Thoughts on Government when he said “Fear is the foundation of most governments; but it is so sordid and brutal a passion, and renders men in whose breasts it predominates so stupid and miserable, that Americans will not be likely to approve of any political institution which is founded on it.”
The Supreme Court commented on the fearful prospect of stricter libel laws, stating it “may lead to intolerable self-censorship,” and that “The First Amendment requires that we protect some falsehood in order to protect speech that matters.”
Fear is the foundation of most governments; but it is so sordid and brutal a passion, and
renders men in whose breasts it predominates so stupid and miserable, that Americans will
not be likely to approve of any political institution which is founded on it.
Conversely, President Trump’s desire to tighten libel laws demonstrates his agenda of governance by fear. Having regularly called the press “the enemy of the people,” Trump has ineffectually attempted to hinder its reach and influence. In a 2016 interview with seasoned journalist Bob Woodward, Trump remarked that “Real power is — I don’t even want to use the word — fear.”
“Real power is — I don’t even want to use the word — fear.”
Ethics, not laws
Yet a free press is not off the hook. A Gallup Poll showed that the public’s trust in media is steadily declining. Media bias has turned journalism from a public forum to an echo chamber, further polarizing the nation. The fourth estate holds great power, and therefore, great responsibility. Ethical guidelines exist to govern professional journalists and news organizations to write, publish, broadcast, or otherwise announce that which is accurate, fair, and the least harmful. The Society of Professional Journalists, among several media ethics organizations, has dictated in its code of ethics that journalists should:
- Seek Truth and Report It
- Minimize Harm
- Act Independently
- Be Accountable and Transparent
Ethical codes, not legal regulation, help journalists elevate their craft and democracy as a whole. Libel laws are helpful when serious harm has been done to individuals, but the first line of defense always starts with the journalist themselves. Ethical reform, not tort reform, can help America and a free press flourish into healthy, breathable space for those to report the facts and evaluate policy and leadership.