Another laughable libel suit

The last time a sitting president sued a newspaper for libel, laughter broke out on the floor of the US Senate.

That was December 15, 1908, when president Teddy Roosevelt sued the  New York World  newspaper after it linked him to corruption over the Panama Canal. Roosevelt ordered federal attorneys to file criminal libel suits against newspapers  all over the country. Democrats were outraged, once they stopped laughing.  One US attorney resigned in protest rather than prosecute Teddy’s critics for libel.

The main target of the suits, New York World newspaper publisher Joseph Pulitzer, famously said:  “He cannot muzzle the World.”  (See Pulitzer’s Reply Dec. 16, 1908)

Roosevelt’s lawsuit,  US v Press Publishing,  used to be considered the “last gasp” of seditious libel.

The US Supreme Court didn’t think much of the suit, handing down a ruling  in 1911 that was only two pages long. The ruling ignored the merits of the case and simply sustained an objection by Press Publishing (the owner of the NY World)  that “the court has no jurisdiction in this case, because there is no statute of the United States authorizing the prosecution.”

The case was thought to be a First Amendment landmark at the time, but it is barely remembered in communications law textbooks today.  After all, what sitting president would lower himself to file such a suit?  Even outright allegations of murder did not tempt President Bill Clinton to wield that cudgel against critics like Jerry Falwell. What president would be so foolish as to sue for libel just because a newspaper published a disagreeable opinion?

Which brings us to Donald Trump, the president who defied expectations. Tump  sued the New York Times  on Feb. 26, 2020, and the Washington Post, on March  3, 2020, for  an apparently disagreeable opinion about Trump’s relationship with Russian dictator Vladimir Putin. In the suit, Trump claimed that the Times knowingly published the supposedly false charge that there was a “quid pro quo” with the Russians in return for  their help in the 2016 election.  (The plaintiff’s petition can be read here.) 

This “quid pro quo” was described in  an op-ed written by former New York Times editor Max Frankel and published March 27, 2019.  In the op-ed, Frankel rejected  small concerns about “collusion” with Russia in the Trump campaign. The much larger issue, he said, involved the relationship between Trump and Putin.

(UPDATE: The story continues but the court dismissed Trump’s lawsuit in March, 2021).
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High school media censorship

It’s no secret that a Norfolk, Virginia high school building is deteriorating. School district officials have taken state legislators on tours to show how much they need to fund repairs. They point out problems like the collapsed auditorium ceiling and a sagging classroom floor, along with peeling paint and ancient bathroom fixtures.

So it didn’t seem like such a taboo subject when a creative group of the school’s students shot a video that described the building’s condition in May, 2019. But apparently it was. Administrators took the video off the web without explanation a week later.

This is the state of censorship for young people in Thomas Jefferson’s Virginia. A fact so obvious it can be seen from the street can’t be discussed in their own student media.

This type of censorship is exactly what the First Amendment prevents for adults, but these rights do not necessarily apply to high school students, according to the 1988 US Supreme Court decision in  Hazelwood School District v. Kuhlmeier.

Eleven states have created exceptions for high school students under the Tinker v Des Moines standard which is more protective of freedom of speech and press.

First Amendment standards for high school media vary from state to state

Virginia delegate Chris Hurst, a former broadcast journalist has argued that this kind of censorship is “beyond the pale” and introduced state legislation in 2019 that would have recognized the First Amendment rights of student journalists.  The legislation was reintroduced in 2020, and it should get better treatment than it did in 2020, when it was not voted out of committee and was opposed by high school administrators. In committee testimony in 2019, one high school administrator wondered just where this crazy idea of freedom of speech would stop, and envisioned schools being forced to publish sex manuals for first graders. That’s a pretty wild exaggeration, but it shows just how little school administrators understand one of the most important issues in public life today.   

Parents win first Sandy Hook libel suit

Parents of children killed at the Sandy Hook Elementary School shooting on December 14, 2012 won a libel suit yesterday (June 17, 2019) against the authors of a book that claimed it never happened.

It was a victory for parents who have been besieged with hate mail and death threats from alt-right conspiracy theorists and hoaxers. A similar lawsuit against Alex Jones and his program “InfoWars” is still being contested in court. New York Magazine had a good overview of the basic issues in Sept. 2016.

The question in law is whether public figures like the Sandy Hook parents can recover for expressions of opinion, and whether it is a matter of fact or opinion to say that no children were killed at Sandy Hook and that parents are part of a left-wing conspiracy. First Amendment Watch has a good set of resources and a law student’s guide to the issues.

Responding to Trump’s attacks on the press


New York Times Publisher A.G. Sulzberger  wrote this on Feb. 20, 2019: America’s founders believed that a free press was essential to democracy because it is the foundation of an informed, engaged citizenry. That conviction, enshrined in the First Amendment, has been embraced by nearly every American president. Thomas Jefferson declared, “The only security of all is in a free press.” John F. Kennedy warned about the risks to “free society without a very, very active press.” Ronald Reagan said, “There is no more essential ingredient than a free, strong and independent press to our continued success.”

All these presidents had complaints about their coverage and at times took advantage of the freedom every American has to criticize journalists. But in demonizing the free press as the enemy, simply for performing its role of asking difficult questions and bringing uncomfortable information to light, President Trump is retreating from a distinctly American principle. It’s a principle that previous occupants of the Oval Office fiercely defended regardless of their politics, party affiliation, or complaints about how they were covered.

The phrase “enemy of the people” is not just false, it’s dangerous. It has an ugly history of being wielded by dictators and tyrants who sought to control public information. And it is particularly reckless coming from someone whose office gives him broad powers to fight or imprison the nation’s enemies. As I have repeatedly told President Trump face to face, there are mounting signs that this incendiary rhetoric is encouraging threats and violence against journalists at home and abroad.

Through 33 presidential administrations, across 167 years, The New York Times has worked to serve the public by fulfilling the fundamental role of the free press. To help people, regardless of their backgrounds or politics, understand their country and the world. To report independently, fairly and accurately. To ask hard questions. To pursue the truth wherever it leads. That will not change.

Trump dossier libel suit dismissed

In a victory for First Amendment advocates,  a federal court ruled Dec. 19, 2018  that news articles about the Steel Dossier, which alleges illegal and immoral acts by Donald Trump and his campaign in 2016, were protected by the “privilege” defense against defamation suits.

The dossier (memo) was written by former British Intelligence head of the Russia desk, Christopher Steele and circulated in the months before and after the November 2016 election.   It was  published  January 10, 2017, by BuzzFeed News with the headline:   These Reports Allege Trump Has Deep Ties to Russia.

BuzzFeed cautioned that the dossier  “includes specific, unverified, and potentially unverifiable allegations of contact between Trump aides and Russian operatives, and graphic claims of sexual acts documented by the Russians.”

Although the major subject of the dossier was Donald Trump and his attorneys and advisors, the suit was filed by Aleksej Gubarev, a Russian whose name was peripheral to the events described in the dossier.     

In her ruling, federal judge Ursula Ungaro of  Miami granted a motion by Buzzfeed magazine to dismiss the lawsuit, saying that the press was protected by the legal doctrine of  fair report privilege.   

Privilege is one of three major defenses against libel suits. (The other two are truth and fair comment).   The defense of privilege gives journalists the ability to report on official government proceedings whether or not information in the proceedings is provably true or not.   The doctrine of privilege allows unfettered news reporting of conflicting ideas or versions of events that may surface in trials, executive memos or congressional hearings.

According to a Columbia University Global Freedom of Expression article,  the decision turned on the question of whether the report was an official proceeding.  In many cases, courts have interpreted proceedings to be official whether or not they are open to the public.

Why we can laugh at Trump

Some people are afraid of freedom of speech. Some even think that disrespecting a political  leader shouldn’t be legal.  But there is a long history of  freedom that opens the door  to criticism  about any leader or public figure.  Take the Dec. 16, 2018  Saturday Night Live sketch that used the theme of “It’s a Wonderful Life” (a 1946 movie) to imagine the world if Trump had not won the 2016 presidential election.

In response, Trump tweeted:

✔@realDonaldTrump  A REAL scandal is the one sided coverage, hour by hour, of networks like NBC & Democrat spin machines like Saturday Night Live. It is all nothing less than unfair news coverage and Dem commercials. Should be tested in courts, can’t be legal? Only defame & belittle! Collusion?    
The SNL satire was not flattering, and it’s not hard to see why it might upset someone who was its target, although it was not “news coverage” or a “Dem” commercial.
But to the main point:  Is it legal?  Shouldn’t a system that allows this unfairness be “tested in the courts”?

Actually, as it turns out, it already has been tested, and rather frequently in fact.  The “fair comment and criticism” defense against libel suits goes back for centuries. The freedom to criticize public officials has been a bedrock point of law since the founding of the country, reaffirmed many times in the courts, and it’s amazing and sad that  Trump doesn’t seem to know one of the most basic and profound facts of American history.

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Hollywood star sues for ‘false light’

Hollywood star Olivia de Havilland is suing FX network and Ryan Murphy Productions for “false light” over the way she is portrayed in a docudrama “Feud” that concerns a rivalry between two other stars, Bette Davis and Joan Crawford.  Davis and Crawford are dead, but de Havilland, at age 101, is still very much alive.

“I believe in the right to free speech,” says de Havilland,   “but it certainly must not be abused by using it to protect published falsehoods or to improperly benefit from the use of someone’s name and reputation without their consent.

The suit raises the interesting question of how much a living historical figure can control what is said about them.   See: New York Times story March 3, 2018.

Anniversary of Smith v Daily Mail

When should the names of juveniles accused of murder be made public? Forty years ago, under West Virginia state law, the answer was ‘never.’  It was illegal for a news organization to make public the name of anyone under 18  accused of a crime.

Generally there are good reasons for keeping the names of juvenile offenders private, including a better chance for rehabilitation.  But who has the duty to keep a name quiet? A newspaper? And would that be true for a teenager accused of murder, for which there is no chance of rehabilitation?

After a school shooting in 1977, editors of the West Virginia Daily Mail decided that a murder charge against  a 14 year old should be made public. A county prosecutor brought indictments against the paper’s employees for violating state law, and the paper fought the case to the US Supreme Court, which agreed that such state laws were unconstitutional prior restraints on the press in violation of the First Amendment.  The duty to keep a juvenile’s name confidential belonged to law enforcement, not the press, the court said.

See: Daily Mail editorial Feb 8, 2018  
Washington & Lee case summary

Libel laws don’t favor Roy Moore

Judge Roy Moore, the embattled Republican nominee for Alabama’s open U.S. Senate seat, must surely long for the good ole days, says Vincent R. Johnson,  a law professor at St. Mary’s University, in a Nov. 19 op-ed for the San Antonio Express-News. 

Until 1964, the American legal principles governing libel and slander were completely out of sync with the free speech and free press guarantees of the First Amendment.

First, a defamatory statement at that time was presumed to be false. The plaintiff did not have to prove falsity. Second, it made no difference how much care the speaker exercised. If the statement was false, strict liability was imposed. Third, certain statements were presumed to cause harm. Even if a plaintiff presented no evidence of actual losses, a jury could award a large amount of damages based simply on the nastiness of the utterance and the extent of its circulation.

All that changed with the 1964 New York Times v Sullivan case, Johnson notes.

FCC lifting rules on media concentration

US & International Media Concentration

Depending on your point of view, the new broadcast station ownership rules issued  Nov. 16, 2017  by the Federal Communications Commission  will either increase market diversity by ridding us of antiquated rules,  or,  it will decrease diversity by helping large media companies grow even larger.

The new rules are part of a standard four-year review of broadcast ownership rules. They follow a pattern of deregulation since the Reagan era.      Continue reading