August 10, 2017

Annual 2017: Trump versus the press and the First Amendment to be examined by panelists

No doubt you have seen the headlines:“Donald Trump on libel laws: We’re going to ‘open’ them up”; “Trump calls for changes to libel laws in attack on New York Times.

And surely you’ve seen some of the more than 65 tweets by President Trump since his election last November that call reports critical of his administration by prominent, legitimate media outlets “fake news.”

"The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!" the president wrote in one of them.

The attacks on the media are relentless and unprecedented and they are real, says George H. Freeman, executive director of Media Law Resource Center in New York. He will serve as the moderator for the Section of Litigation’s panel discussion, “Trump v. the Press and the First Amendment: Fake News, Government Leak Investigations, Alleged Biased Media Coverage, Trump’s SLAPP libel suits and his Pledge to ‘Open Up the Libel Laws’ —  Will the First Amendment Survive?,” during the ABA Annual Meeting on Saturday, Aug. 12, 10-11:30 a.m. at the New York Hilton Midtown.

Freeman, who is also the former chief lawyer of the New York Times, will be joined on the panel by David Walsh, chief sports writer of the British newspaper The Sunday Times; and First Amendment lawyers Floyd Abrams, senior counsel at Cahill Gordon & Reindel in New York; and Tom Clare, partner at Clare Locke LLP in Alexandria, Va. The panel will examine several relevant questions, including:

  • Does the president have a purposeful strategy to weaken the First Amendment and the media?

  • What are the implications of the public’s – and the president’s – use of “fake news?”

  • Does libel law work when it comes to outrageous charges by or against public figures?

  • Do anti-SLAPP (strategic lawsuit against public participation) laws prevent lawsuits whose purpose is to chill speech and financially drain political enemies?      

Freeman said that although Trump’s tweets and taunts of fake news are “silly,” they are a real threat to the free press and an assault on the First Amendment. 

“I don’t think fake news means anything, but it has been a strategy of the administration to minimize the media and I think it has had a toll in terms of people’s respect for the media,” Freeman says. “As silly as it is, it seems to have had an effect and therefore the media has to figure out how to combat it. The legal answers alone aren’t enough. Without public support, it is hard to make much progress legally.”

Fake news aside, Freeman says he’s more concerned about the president’s promise to open up the libel laws so he can make it easier to sue media companies and his threat of prosecuting journalists and their sources under the Espionage Act.

“The threat against journalists and sources is the most real threat, and prosecution under the Espionage Act would be unprecedented,” Freeman explains. “I think we’ve seen that the president has tried at times, without much success, to retaliate against reporters he finds ‘unfavorable’ and also in lessening the amount of access to the administration by having almost no press conferences and now having the White House press secretary’s conferences not be televised. So those are the very real threats.”

Freeman says the least real threat is Trump’s promise to change libel laws.

“The president can’t change the law; only the courts can do that,” Freeman says. “And the U.S. Supreme Court has given no indication they’re about to undo a precedent that now is 53 years old. And, in any case, libel law is, at bottom, state law, not something the federal executive has any power over.”

Since the Supreme Court’s 1964 decision in New York Times v. Sullivan, the Supreme Court has placed constitutional limits on how states can define libel, notably by requiring public officials and, later, public figures to prove actual malice. That protection was needed, Justice William J. Brennan Jr. wrote, to vindicate a “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.”

Freeman says he hopes the audience, after hearing the panel discussion, will leave knowing what threats from the new administration are real and which aren’t and how likely the threats are to come to fruition. “And more importantly,’’ he continues, “is to take away the fact that much depends on public opinion. What the media or those who believe in the importance of an independent press and the First Amendment and what they can do in terms of moving the public opinion needle a little more in favor of the media.”

“Trump v. The Press and the First Amendment” is sponsored by the ABA Section of Litigation.