Fight to preserve free press for democracy

Two months from today, Donald Trump will be inaugurated as our 45th president.

During his campaign, the president-elect made many interesting promises, and now most Americans are wondering how many will come to fruition. One such promise could have significant effects on how much information newspapers may be able to provide to readers in the future.

I’m referring, of course, to Trump’s promise to “open up our libel laws,” making it easier to sue the media and “win lots of money.”

First off, responsible media always works hard to ensure stories are reported accurately and fairly. Still, I always stress that we are in the business to gather and share information — not censor or withhold it.

That basic rule becomes even more important when we are dealing with public officials.

With great interest, I started researching whether Trump’s statement is even really possible. I found that, indeed, there are a few things a president could do to accomplish such a goal.

SLAPP, or Strategic Lawsuit Against Public Participation, describes a lawsuit brought against someone for exercising First Amendment rights — filed with little chance of success but intended to make the lawsuit itself the punishment.

More than two dozen states have anti-SLAPP laws that allow defendants to recover costs and fees from plaintiffs who filed meritless cases for intimidation purposes. (Ohio is not one of them.) Some people support passing a federal anti-SLAPP law, but if Trump means what he said, he could oppose or veto such legislation.

Then there is the 1964 landmark freedom of the press case, New York Times Co. v. Sullivan, that created a distinguishable difference between the burden of proof in libel cases for private individuals or public officials.

In its unanimous decision for the New York Times, the U.S. Supreme Court held that in order to prove libel, a “public official” must show the newspaper acted “with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard” for truth. The court asserted America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.” Free and open debate about the conduct of public officials, the court reasoned, is more important than occasional, honest factual errors that might hurt or damage officials’ reputations.

The standard, later extended to include public figures, set a high bar for libel and meant that public officials like Trump would be very hard pressed to win a libel lawsuit.

First off, let me say, we always strive to not print false statements.

But in order for media — often referred to as the “fourth estate” because of the important role we play in checks, balances and information sharing — to cover our public officials and lead that “uninhibited, robust and wide-open” debate, we must maintain a robust First Amendment.

One possible way a president could attempt to “loosen up libel laws” would be to appoint Supreme Court justice(s) willing to overturn the Times v. Sullivan case and subsequent cases built on it. Most legal experts would argue, however, that’s not likely.

Sandra S. Baron, a senior fellow at Yale Law School’s Information Society Project, last week pointed out to the Times that for one thing, libel and the protection of free speech are not, by nature, liberal versus conservative issues.

As I see it, the bottom line is this. No matter whom you backed in the Nov. 8 election, Americans must unite to fight to preserve our rights to free speech and a free press.

If we lose our right to criticize the government in free and open debate or to cover that in our newspapers, our democracy will erode with it.

blinert@tribtoday.com

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