"One of the things I'm going to do if I win is...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.... We're going to open up those libel laws. So when The New York Times...writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected," said Donald Trump during his campaign.
Let's look at the law Trump wants to change and where it came from.
We usually think of Thomas Jefferson as the supporter of the free press, and Alexander Hamilton's view that the government should "restrain dissent in the name of law and order." But in the early 1800s they switched sides in a bizarre case that transformed American libel law into the unique thing it is today.
Ultimately this case, the People vs. Croswell,
- Changed the definition of libel;
- Shifted the course of libel law away from its British roots;
- And, expanded journalists' freedom to write damaging stories about American public figures.
President Jefferson goes after newspaper for hurting his reputation
Before Jefferson ran against President John Adams, he hired a gossipmonger named James Callender to write negative things about Adams. Callender also revealed that Hamilton kept a mistress, the married Maria Reynolds, and even bribed her husband to keep the affair secret (dramatized in the Broadway musical Hamilton).
After Jefferson was elected, newspaper editor Harry Croswell revealed that Callender was behind all those negative stories. Croswell called Callender a "tool" because Jefferson had paid him.
Jefferson then sued Croswell in New York state court, and he was convicted in 1804 of libel.
Yet, Croswell told the truth!
That it was true that Jefferson had paid Callender to do his dirty work did not arise during Croswell's trial. It focused on only whether Croswell had actually published the statements, not whether they were factual.
Hamilton took the case on appeal, seeking to overturn Croswell's libel conviction with the claim that truth was a defense when it comes to public figures. In other words, Hamilton countered that a story cannot be libel if it's true.
Typically the two founders were ideologically consistent, but People v. Croswell tested their previous positions toward the First Amendment's freedom of the press guarantee.
The New York Supreme Court agreed with Hamilton, and its legislature passed a law in 1805 that departed from British libel law.
US libel law goes even further than the British law
People v. Croswell stood until 1965, when New York Times v. Sullivan expanded freedom of the press even more to include the "malice standard." Libel law after Sullivan means for a newspaper to be sued, it must have known its story was false at the time it was printed or acted in "reckless disregard" of the truth. The paper has to have acted "maliciously" by printing something it knew was false or made no effort to find the truth. A tough legal standard for a plaintiff to meet.
We take criticizing our government freely for granted. Very few of almost 190 other nations can say the same.
Today, British libel laws still allow damages to be recovered from media that publish true stories about public figures whose reputations have been damaged. Because British laws favor the plaintiff whose reputation and privacy are at stake, American journalists can still be sued for damages in British courts. A U.S. law passed in 2010 actually protects American journalists from British libel rulings being enforced in American courts.
Fake news and unfair reporting
Some American citizens, wary of government tyranny, consider gun ownership to be the civil right that will keep us free. But let's not forget that for people to know what to revolt against, they need a free press and the freedom of expression that every American citizen has from birth.
Is fake news rampant ? Are there unfair reporting and errors made every day? Certainly. The problem isn't solved by restricting legitimate media, but by protecting and improving it. Newspapers operating today are limping along, having lost critical ad revenue in the digital era. U.S. media is imperfect, but it's still the best the world has ever offered. Even New York Times frequent critic Donald Trump admitted that the newspaper is "a world jewel."
Trump threatened the Times for its coverage of accusations made by women for groping. He claimed the stories were malicious and false. After being elected, he told the Times he had changed his mind about libel law. The same laws protecting the newspaper, his lawyers explained, also protected him from being sued for his own incendiary comments.
America is unique in the world for the freedom it gives to the press. The History Dr thinks that democracy is worth it.
As the Supreme Court ruled in 1971:
A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.
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