To win defamation lawsuits, plaintiffs must prove falsified statements or information – causing material harm either negligently or willfully.
A thin line at times separates free expression from defamation in America. Slander and libel laws are more defendant-friendly than the other way around.
At the same time, false statements or information harming the reputation of individuals, businesses or other entities aren’t protected under the Constitution’s First Amendment.
Section 230 of the US Communications Decency Act absolves Internet service providers and web sites of defamation liability over user comments and content – why Facebook, Google and other online platforms aren’t libelous for material on their sites.
If plaintiffs are public figures like Trump or members of Congress, the standard of willful malice must be met to be deemed libelous.
Besides federal standards, each state has its own, complicating things further. Weighing in on the issue, Supreme Court rulings held that plaintiffs must demonstrate factually inaccurate statements made with “actual malice” or a “reckless disregard” for the truth – no simple task.
Weeks earlier, Trump tweeted: “The failing @nytimes has disgraced the media world. Gotten me wrong for two solid years. Change libel laws?”
Candidate Trump said he’d “open up” libel laws as president to challenge media fake news – “so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”
“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’s treading on dangerous ground if he follows through irresponsibly on changing libel laws to let him target critics in court.
Media and other forms of free expression are vital rights. Without them, all others are endangered.
During his Monday press briefing, White House press secretary Sean Spicer said the administration is “looking into” possible ways to change federal libel laws to make it easier to target reporters producing inaccurate stories.
“(T)hat is something that is being looked into substantively, and then both logistically how it would happen,” he said.
On ABC News Sunday, White House chief of staff Reince Priebus said the issue is being discussed, but “how that gets executed or whether that goes anywhere is a different story.”
Lawsuit filings are easy, winning another matter entirely, especially if media are targeted – able to use the power of the press to counter plaintiffs and influence public opinion, with plenty of help from other fourth estate members.
A greater concern is targeting whistleblowers for exposing government wrongdoing and responsible journalists for doing their job, especially independent ones.
Last December, Congress overwhelmingly passed the Countering Disinformation and Propaganda Act as part of the annual National Defense Authorization Act – an unconstitutional measure against First Amendment freedoms.
On December 23, ahead of the Christmas holiday weekend, Obama signed it into law practically unnoticed. Along with approving bloated military spending, it establishes a Center for Information Analysis and Response – a de facto ministry of truth.
It aims to counter truth-telling on vital issues, suppress what everyone has a right to know, replace it with state-sponsored propaganda – along with perhaps targeting reliable independent sources of news, information and analysis for elimination.
It’s the law of the land if Trump intends using it. His FCC director Ajit Pai wants Net Neutrality undermined. Last December, he said its days are “numbered.”
Digital freedom is threatened with him as FCC director. Federal Center for Information Analysis and Response authority can target anything the administration calls disinformation and propaganda for elimination – gravely threatening First Amendment rights.