Did Trump Just Trash the First Amendment and Freedom of the Press?

By Rachel Alexander Published on February 27, 2016

One of our most cherished rights in this country is the First Amendment’s right to free speech and freedom of the press. It is no coincidence that these rights are protected in the First Amendment. The Founding Fathers fled their home countries in order to escape heavy-handed laws and government. They wanted the freedom to be able to criticize the government and politicians. So it came as a shock to many that GOP presidential candidate Donald Trump now seems to be attacking this freedom.

“One of the things I’m going to do if I win,” Trump said Friday during a rally in Fort Worth, Texas, “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”

It’s not clear what he would need to change based on that description. There are years of established constitutional law decisions protecting journalists from libel lawsuits, though not from the kind of libel Trump describes above. A plaintiff must show that 1), the statement was untrue, and 2) it caused damage to their reputation. There is an even higher bar for public figures. They must show the journalist also had actual malice, or what Trump described as “purposely negative and horrible and false articles.” The operative word here is purposely. If it can be shown that the journalist misrepresented the public figure not accidentally but purposely — that is, with malice — then the journalist is fair game.

But Trump wasn’t finished. “We’re going to open up those libel laws so when The New York Times writes a hit piece, which is a total disgrace, or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected,” he said. “We’re going to open up libel laws and we’re going to have people sue you like you’ve never got sued before.”

Here any hint of malice is, at best, tucked away in the term “hit piece.” But a hit piece might also just be a piece where the journalist emphasizes negative, but true, information about the public figure. And Trump says he wants to change the laws. What could he change to make it easier to win libel lawsuits against journalists other than working to drop the malice requirement?

Whatever Trump meant by his threat, journalists reacted strongly, warning that Trump’s plan would open a Pandora’s box. The New Yorker’s John Cassidy declared, “Trump takes attacks on media to new level — says as president he’ll try to gut the First Amendment.”

Is Cassidy overstating things? The concern comes down to this: If the malice element is dropped, then it all comes down to whether a negative piece of reporting on a public figure is false or not. But who decides if something is false or not? There is no right to a jury trial in a civil case (some states do permit them if requested), and libel lawsuits are generally civil. So judges would decide. What if the judge is biased in favor of the public figure?

This scenario should be especially concerning to conservative journalists. The legal system tilts to the left, so relaxing the laws against libel lawsuits probably would hurt conservative reporters, not The New Yorker or The New York Times. Some consider bloggers to be journalists; they may become targets as well. The left-leaning mainstream media may be unfair to conservatives, but restricting free speech in an attempt to silence them gets into risky territory.

The late Supreme Court Justice Antonin Scalia might have been sympathetic to Trump, even if he might have taken a different path to correcting the situation. The 1964 case New York Times v. Sullivan established that a plaintiff must show malice when suing a news organization for libel, and Scalia had little good to say about that ruling. “One of the evolutionary provisions that I abhor is New York Times v. Sullivan,” he said during an interview in 2012. “It made a very good system that you can libel public figures at will so long as somebody told you something — some reliable person — told you the lie that you then publicized to the whole world.”

The Washington Post article quoting him continues:

It’s not that Scalia takes issue with the principles behind the decision. They may well be sound and constructive, he says. But that doesn’t mean that the Supreme Court had any business messing around with centuries-old understandings of free speech.

When the First Amendment was ratified, he argues, “Nobody thought that libel, even libel of public figures, was permitted, was sanctioned by the First Amendment. Where did that come from? Who told Earl Warren and the Supreme Court that what had been accepted libel law for a couple hundred years was no longer accepted.”

It would be an uphill fight for Trump, in any case. Trump would need to find a way to get in front of the U.S. Supreme Court if he wants to change the laws, and it is doubtful that either the conservatives or the liberals on the court would roll back press freedom protections, particularly in the age of the internet when practically everyone can offer public commentary about public figures via social media.

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  • Mary Sommers

    The 7th Amendment “preserves” the right to a jury trial in civil cases. This means that while not all types of civil cases automatically receive a jury trial, many, including libel cases, do.

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