Existing Libel Laws Protect the Right to Speak Freely – For All of Us

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The next battles over our freedom to speak, write and post with a critical — sometimes vulgar — manner will involve the Post, CNN, Congress and perhaps the Supreme Court.

There is a lot of “libel talk” — and filing of mega-million-dollar lawsuits — in the air, and as long as such stays there the people’s ability to openly criticize public officials is safe.

Advocates of free speech, free press and holding government publicly accountable — liberals and conservatives alike — need to keep cautious eyes on new, perhaps coordinated, efforts to chill critics and water down legal protections regarding public comments about officials and famous individuals. In the space of a few weeks:

  • Justice Clarence Thomas called for the U.S. Supreme Court to revisit its landmark 1964 decision New York Times Sullivan, which set a high standard for public officials and figures of having to prove “actual malice”— knowing or reckless disregard for the truth — in our speech;
  • Devin Nunes, R-Calif., has said he will sue Twitter, a political consultant and the anonymous holders of two Twitter accounts for at least $250 million, claiming Twitter has a “political agenda” by allowing the consultant and anonymous accounts — @DevinNunesMom and @DevinCow — to remain active. Nunes also claims Twitter has restricted his ability to reply and “amplified” abusive and hateful content aimed at him;
  • Nicholas Sandmann, a Kentucky high school student, has sued The Washington Post for $250 million and CNN for $275 million over news coverage of a January incident at the Lincoln Memorial in Washington, D.C., where Sandmann and classmates were face-to-face with a man at an Indigenous Peoples March. The lawsuit claims the Post’s news reports were a “modern-day form of McCarthyism” and — given Sandmann was wearing a Trump-themed baseball call — that its coverage was skewed by a “well-known and easily documented biased agenda against President Trump” and his supporters. Sandmann’s lawyers also said they sent letters to about 50 media organizations signaling potential legal action against those outlets.

President Trump has called for changes in libel law — mistakenly speaking of a federal law on defamation, which does not exist — to  make it easier for politicians to sue news organizations. When Sandmann’s lawsuit was announced, Trump tweeted, “Go get them Nick. Fake News.”

Thomas’ call for revisiting the 9-0 Times decision was not supported by any other justice and most court observers consider it more of a call to action in upcoming years — perhaps when more sharply conservative justices are appointed.

In the Times decision, the Supreme Court held that public debate in a democracy should be “uninhibited, robust and wide-open” on matters of public interest and when public officials are involved — later expanded to include most public figures.

Nunes’ lawsuit isn’t given much chance of success: Opinion, satire and hyperbolic language are protected speech. Section 230 of the Communications Decency Act of 1996 protects social media sites because they don’t originate speech or information, but merely convey it. Given that hundreds of news outlets carried initial reports of the incident involving Sandmann similar to the Post and CNN, it may be difficult to single out their coverage as biased because of what the lawsuit calls an anti-Trump “agenda.”

As such, many consider Nunes and Sandmann lawsuits as little more than political posturing. But the impact of bringing those lawsuits — and the potential for more like them — ought to concern us all, whether or not the news outlets ever pay a dime on these two complaints.

We must not forget it’s not just news organizations or social media moguls that would be affected — or the White House or Congress more emboldened — by weakening the Times standards, or by legislative action in states.

All of us would be more exposed when criticizing public officials at any level — and there are tens of thousands of local public officials and staffers who might just want to chill, punish or silence the critics and watchdogs in their particular community.

The nation’s founders faced insults and satire far beyond what officials today face. In 2008, a CNN report documented exchanges in the 1800 presidential race: Vice President Thomas Jefferson’s camp accused President John Adams of being a “hideous hermaphroditical character, a fool, a hypocrite, a criminal and a tyrant.” Adams’ backers called Jefferson “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father” and a “weakling, an atheist, a libertine and a coward.”

From bumper stickers to yard signs to social media posts, we generally can join without fear in the back-and-forth of that “uninhibited, robust and wide-open” exchange envisioned by the high court more than 50 years ago.

The next battles over our freedom to speak, write and post with a critical — sometimes vulgar, even erroneous — manner will take place in the rarified air of our society, and involve the Post, CNN, Congress and perhaps the Supreme Court.

Make no mistake: The impact of chilling or weakening the Times legal protections will reach into every home, every cellphone and every social media post any one of us chooses to make on matters of “public interest.”

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac

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