“Opening up” American laws on defamation may show the U.S. president they can’t be more draconian than what their Constitution allows. The SC’s landmark Sullivan case set the “national rule.”
“We are going to take a strong look at the country’s libel laws so that when somebody says something that is false and defamatory about somebody, that person will have meaningful recourse... (U.S. libel laws) are a shame and a disgrace and don’t represent American values or fairness.”
-- President Trump
WHAT’S WRONG with American libel laws that prompt U.S. President Trump to call for their review? The threat to “open up” laws on defamation was unleashed as early as the 2016 U.S. election campaign, to make it easier, he said, for public officials to sue reporters and editors and their news outlets.
Trump clearly wants to blast the press not just with his stream of insults, in tweets and in-your-face shaming during public meetings. He wants journalists “locked up” or ordered to pay stiff fines.
That requires amendment of state laws or adoption of a federal law that would be tough on journalists but easy for aggrieved public officials.
Trump faces a huge task.
What he needs to do
Trump has to persuade individual states to amend their libel laws. While 32 legislatures are Republican-controlled (14 are Democrat-ruled and 4 are split), battling the media is not exactly a populist cause.
Even if they’d grant Trump’s wish, the state laws cannot be more rigid than what the First Amendment of the U.S. Constitution allows. And the Supreme Court interprets the Constitution. Same thing with the federal law that Trump might persuade Congress to adopt.
Did I say that the U.S. only has state laws on libel and no federal libel law? Despite the variations of the law from state to state and the absence of a federal law, the Supreme Court adopted a “national rule” in 1964, in its landmark decision New York Times Co. vs. Sullivan.
And that SC rule in gist says anyone accused of libeling a public official must be guilty of “actual malice.” Then Justice William J. Brennan Jr., who wrote the decision, said “actual malice” means the accused had (a) “knowledge that the information was false” or (b) it was published with “reckless disregard of whether it was false.” (The SC later also applied the ruling to “public figures,” those who’re newsworthy even though they don’t hold public office.)
A federal law passed or a state law amended to suit Trump’s call still needs to pass the SC yardstick. Either the First Amendment is removed or revised or the Sullivan decision is reversed. And neither one is easy to do.
Pretty much similar
Libel law in the Philippines is pretty much similar to the U.S. libel law: harder to convict the accused journalist when the complainant is a public person. Actual malice is required to convict the reporter or editor. And the rule on “privileged communication,” laid down in Borjal vs. Court of Appeals (GR #126466, Jan. 14, 1999), covers almost everything that a public person says or does in relation to his job.
And like in the U.S., when the “victim” of libel is a private person, it’s easier to nail the erring journalist. Trump doesn’t recognize the difference: higher accountability of the public person and larger protection accorded the private person. Trump wants to enjoy the same rights he had when he was selling real estate: he easily filed hundreds of lawsuits.
What laws protect
Open up the libel laws. Maybe the review will make Trump realize what First Amendment lawyer Floyd Abrams pointed out: “Existing laws allow recovery for knowingly making false statements but also protect us against people who seek to use libel law to suppress or punish those who are critical of their public officials.”
Trump bristles and fumes over media criticisms that he routinely dismisses as fake news. Yet he averages making 5.6 lies a day. According to the Washington Post that tracks his “falsehoods and misleading claims.” Trump breached the 2,000 mark last week.
You find it odd if not bizarre for “a serial defamer” to seek redress in a defamation lawsuit? He who comes to court comes ready to throw more mud.
Published in the SunStar Cebu newspaper on January 13, 2018.
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