Communications Law and Ethics

By Bill Kovarik
Published in The Conversation, Jan. 15, 2021
Creative Commons license for non-profit republication.

In speeches filled with hatred and falsehoods, a public figure attacks his enemies and calls for marches on Washington. Then, after one particularly virulent address, private media companies close down his channels of communication, prompting consternation from his supporters and calls for a code of conduct to filter out violent rhetoric.

Sound familiar? Well, this was 1938, and the individual in question was Father Charles E. Coughlin, a Nazi-sympathizing Catholic priest with unfettered access to America’s vast radio audiences. The firms silencing him were the broadcasters of the day.

As a media historian, I find more than a little similarity between the stand those stations took back then and the way Twitter, YouTube and Facebook have silenced false claims of election fraud and incitements to violence in the aftermath of the siege on the U.S. Capitol – noticeably by silencing the claims of Donald Trump and his supporters.

A radio ministry

Coughlin’s Detroit ministry had grown up with radio, and, as his sermons grew more political, he began calling President Franklin D. Roosevelt a liar, a betrayer and a double-crosser. His fierce rhetoric fueled rallies and letter-writing campaigns for a dozen right-wing causes, from banking policy to opposing Russian communism. At the height of his popularity, an estimated 30 million Americans listened to his Sunday sermons.

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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.

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.

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.