| begin quote from: |
Is the First Amendment safe from Donald Trump?
What Trump's 'libel law' warning really means 03:01
Story highlights
- If elected, Trump could veto a bill that aims to curb nuisance lawsuits, says Marc Randazza
- Trumps could appoint Supreme Court justices hostile to a free press, Randazza writes
- Our democracy depends on robust free speech, Randazza says
Marc J. Randazza is a Las Vegas-based First Amendment attorney and managing partner of the Randazza Legal Group. Follow him on Twitter: @marcorandazza. The opinions expressed in this commentary are his.
(CNN)Donald Trump has said a lot of strange things -- some funny, some creepy, but none scarier than what he said on Friday:
that if he is elected president, he will "open up our libel laws" to
make it easier to sue the media and "win lots of money." No matter what
you may think about his other policy ideas, if he keeps this promise,
we won't be able to effectively express dissent against anything else he
might want to do. We can fight any bad policy if we have a robust
First Amendment.
Marc Randazza
Some
say that Trump is just being a blowhard, that he doesn't know what he
is talking about, and that for all his bluster, there is nothing he
could or would do.
I
am not so sure. Trump has a history of filing SLAPP suits. SLAPP stands
for Strategic Lawsuit Against Public Participation. This describes a
lawsuit filed against someone for exercising his or her First Amendment
rights -- filed with little chance of success, but with the knowledge
that the lawsuit itself is the punishment. After all, if people have to
spend hundreds of thousands of dollars to defend themselves because they
criticized Donald Trump, they might think better of doing so again in
the future.
However, some states, like California and Nevada,
have strong anti-SLAPP laws, which dispense with such cases early and
force the plaintiff to pay the defendant's attorneys' fees. (Full
disclosure: I was instrumental in urging passage of the Nevada Anti-SLAPP law.)
Trump recently got stung with an anti-SLAPP decision, which he probably had in mind when he spoke about "opening up" our libel laws. In fact, he isn't the first big shot to try to make it easier to sue for defamation after having a SLAPP suit blow up in his face.
Therefore,
Trump is clearly frustrated with anti-SLAPP laws (which shows that they
work) and the landmark defamation case, New York Times v. Sullivan.
When
people say that Trump can't do anything about defamation law at the
federal level, I think they miss the point that there is a lot of
support for a federal anti-SLAPP law. I think we need one, and in fact, HR 2304 was one such proposal this last session. If it passes, we could expect President Trump to veto it.
Beyond
new federal legislation, defamation law is a matter of state law,
leaving little for a president to do about it. To win a defamation case,
the plaintiff must show publication of a false statement of fact that
damages the plaintiff's reputation. This standard can vary a bit from
state to state, but it generally fits that general set of requirements.
Therefore,
what could Trump do to "open up" the libel laws? He personally? Nothing
legally, but if elected, he could pick Supreme Court justices willing
to revisit New York Times v. Sullivan, which is in my view the most
important case protecting our First Amendment rights. It is the greatest
protection we have from government officials or powerful businesses
choking the life out of public debate and a free press. Overturning it
would change everything we know about freedom of the press.
In
a defamation case involving an ordinary citizen suing for defamation,
the citizen only needs to show that the defendant knew the statement was
false, or failed to exercise "reasonable care" before publishing it. So
let's say that a blogger writes an article about a private citizen
accusing that person of a crime, based on a false statement by a
witness, without following up. That might be a failure to exercise
reasonable care, and the blogger might lose the case.
But
if the same blogger wrote one about a public figure, like Trump, then
Trump has to prove that the blogger did so with "actual malice."
Even
some judges and lawyers get this wrong, so don't feel bad if you didn't
know what "actual malice" means. It has nothing to do with "malice" at
all. It means that the defendant published the statement knowing it
was false or with a reckless disregard for the truth.
So
if we return to my example, let's say someone wrote a blog post about
Donald Trump, accusing him of a crime, but based it just on an anonymous
email, without following up -- that might be considered to be "reckless
disregard."
Why the different standard depending on the plaintiff?
From New York Times v. Sullivan:
"(W)e consider this case against the background of 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."
How beautiful that language is. It encapsulates what America is all about, the way only Justice William Brennan could.
The
court recognized that public figures have access to the media to defend
themselves, and it went on to reject any notion that the speaker must
prove truth; instead the plaintiff must prove falsity. This is all
because the First Amendment needs "breathing space" in order for free
speech to survive. And if we impose liability for merely erroneous
reports on political conduct, it would reflect the "obsolete doctrine
that the governed must not criticize their governors."
So
what if Trump appoints one or two Supreme Court judges who are willing
to overturn Sullivan? Justice Elena Kagan has already voiced skepticism about
the extension of Sullivan too far into other kinds of libel cases. The
only member of the court I think we could count on to be strongly
opposed to overturning it is Chief Justice John Roberts.
No
matter how flawed it is, our democracy depends upon robust free speech
and free press rights. New York Times v. Sullivan matters more than
anything else. If we lose the right to criticize the government in
wide-open and robust debate, we lose an important part of what it means
to be free.
No comments:
Post a Comment