August 15, 2017

Trump check: Can prez “open up” libel laws and punish media for leaks?

“If you say fake news enough, it will persuade a lot of people,” First Amendment attorney Floyd Abrams said in explaining why he thinks President Donald Trump’s relentless attacks on the media are working to a certain extent. “At the least, it reassures his followers that anything they read that is critical is subject to dismissal. If the press is disbelieved and is viewed as fake, then harm is done to democracy itself.”

Left to right: George H. Freeman, executive director of the Media Law Resource Center; Floyd Abrams, First Amendment lawyer; Jim Rutenberg, media columnist for The New York Times; David Walsh, chief sports writer for Britain’s The Sunday Times; Laura Prather of Haynes and Boone in Austin, Texas; and Tom Clare of Clare Locke in Alexandria, Va.


Abrams, a senior counsel at Cahill Gordon & Reindel in New York,  participated in a 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 Aug. 12 at the New York Hilton Midtown. George H. Freeman, executive director of Media Law Resource Center in New York and the former chief lawyer of the New York Times, moderated the panel that included journalists and attorneys.

Abrams, who has been a critic of the president’s tweets and constant attacks on the media, said the rhetoric comes with a cost. “A lot of the language is one that Juan Peron used to use in Argentina or Erdoğan (Recep Tayyipp, president) uses now in Turkey about the press there,” he said. “It has an effect on the role of the press in exposing misconduct by the government. If the public is persuaded that who leaked a document is more important than what the document says, everything changes. It can have significant antidemocratic results.”

Tom Clare, partner at Clare Locke LLP in Alexandria, Va., said the president has tapped into something that is real in America that predated his attacking the press as fake news.

“I travel all over the country and during jury voir dire we ask how many distrust the media. You would be surprised how many we say they distrust the media,” he said. “There is something to that and what the president has done in a very blunt and inartful way is tapped into that distrust. While I believe that it cheapens the political discourse in the country, I think we are all doing a disservice not to look at what is underlying this distrust.”

Candidate Trump said when he became president that he would “open up” the libel laws and after taking office the White House said it would look into changing the laws. None of the panelists gave that much credence, however.

“The president can’t do that, that’s Congress’s role,” said Laura Prather, a partner in the Haynes and Boone, LLP Litigation Practice Group in Austin, Texas.

“Nothing to worry about, we have no libel laws. We have 50 state libel laws,” Abrams said. “What he (President Trump) really means is that he doesn’t like the New York Times against Sullivan or put it differently the First Amendment, which is the basis of that opinion.” The 1964 Supreme Court case said that for a libel suit to be successful, you have to prove that the offending statement was made with actual malice, with knowledge that it was false or with reckless disregard of the truth.

David Walsh, chief sports writer of the British newspaper The Sunday Times and who broke the story on American cyclist Lance Armstrong doping scandal, said “the kind of libel laws you have in the U.S. really do matter,” noting that the laws in the U.K. are less effective. 

Of more concern to the panelists was the Trump administration’s effort to go after those who leak information to the media and the threat to go after journalists who publish the information.

Jim Rutenberg, a media columnist and reporter for The New York Times, said it is ironic that the president is going after leakers “when Trump himself has used the press to leak information,” he said. “I’ve never seen anything like the leaks in my career.  But what we all are waiting for is the rubber to hit the road when there is a real move against the press to that is with a legal round of subpoenas.”

Prather said the fear is that the administration will use the Espionage Act to go after the journalists who publish leaked information. Abrams says he is not sure if leaks are prosecutable against journalists for publishing information.

“The Espionage Act is 100 years old this year. It’s phrased very broadly and there has been no litigation stemming from it with respect to journalist themselves and there is a very strong defense that journalist will have that it wasn’t intended to cover that,” Abrams explained. At the same time, the language is very broad and there remains a level of uncertainty as to which journalists could be prosecuted for publishing certain information they have obtained from people in the government not of authority to give it to them.” 

Abrams said there is a reason we haven’t had a journalist jailed for publishing leaked information. “Presidents generally don’t go looking for great battles with the press. It is not in their interest,’’ he said. “And this would be a great battle even if this administration decided to try to prosecute in this way. But it remains a ticking time bomb because we simply do not know the answer. Just two weeks ago the assistant attorney general said the administration would not prosecute journalists for doing their jobs. And that was good to hear and reassuring because the law is by no means 100 percent clear.”

Rutenberg was asked what concerns him most as a journalist in the current environment.

“There are three things that keep me up at night,’’ he said. “One, is the legal prospect we’re talking about now that the law is used as a cudgel to silence reports with subpoenas, etc. Two, is that the rhetoric gets so bad that there is violence and somebody gets hurt. And three, would be just that somehow this work to delegitimize actual truth keeps progressing in a way that destroys any concept of truth so that our democracy is even further adrift.”