What Trump can--and can't--do to clamp down on the press
From left, Jim Rutenberg of the New York Times; David Walsh of the Sunday Times; Laura Lee Prather of Haynes and Boone; and Tom Clare of Clare Locke at the “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?” program Saturday at the ABA Annual Meeting in New York City./Photos by Len Irish
As a candidate, Donald Trump attacked what he called "fake news" from the mainstream media and vowed to fight for stricter libel laws. Now as president of the United States, what damage might he do to the press, and what legal options do journalists have available to them to defend their speech? And how might the administration fight the leaks to the media that appear daily?
These were the foremost concerns for the panelists of “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?” at the ABA Annual Meeting in New York City on Saturday. The Section of Litigation and the Forum on Communications Law sponsored the event.
George Freeman, executive director of the Media Law Resource Center, moderated the lively discussion between journalists and attorneys on the panel about the current state of libel laws, the constant leaks coming out about the administration, and the danger that Trump’s rhetoric presents to a free press.
“If you say ‘fake news’ enough, it’ll persuade a lot of people,” said Floyd Abrams, a partner at Cahill Gordon & Reindel, and a longtime First Amendment lawyer. “And it has.”
Abrams compared Trump’s attacks on the press to the kind of authoritarian language used by Juan Perón, a former president of Argentina, and by Recep Tayyip Erdogan, the current president of Turkey. “It can have significant antidemocratic results,” Abrams said.
Jim Rutenberg, a political reporter from the New York Times, has covered Trump since his days working on the New York Post’s “Page Six.” Rutenberg called Trump’s attitude toward leaks one of many fascinating contradictions, given that Trump himself was known for leaking to New York media outlets and has praised WikiLeaks for leaking hacked emails.
However, if the administration were to decide to use the Espionage Act of 1917 to pursue journalists for publishing information leaked to them, it is not at all clear what the outcome would be. Abrams said the text of the law is phrased very broadly, and there hasn’t been enough litigation against journalists for the case law to be clear.
“There remains a level of uncertainty,” he said. He also sees possible defenses for journalists in the legislative history of the Espionage Act—although courts have been increasingly less likely to rely on that as opposed to the text of the bill—or in arguments that the journalists had not acted to intentionally harm the United States or give aid to foreign powers. But the law is unclear, he said, “and it remains a ticking time bomb.”
When it comes to Trump’s vow to tighten libel laws, none of the panelists gave it much credence. There are no federal libel laws, and Congress would have to agree to pass new legislation. In fact, there has been momentum in the opposite direction at the state level for passing what are called anti-SLAPP laws, intended to discourage “strategic lawsuits against public participation.”
Laura Lee Prather, a partner with Haynes and Boone, said that in her home state of Texas, there have been many successful uses of the state’s anti-SLAPP laws.
The language of anti-SLAPP laws vary. In general, they allow a defendant to introduce a motion for dismissal very early in the process of a libel suit, sometimes even before discovery has occurred. If the defendant can show that they have been exercising their First Amendment rights, then the plaintiff must prove that they have grounds, such as a defendant’s actual malice, and that they are not filing suit merely in retaliation.
In some states, if an anti-SLAPP motion is successful, then it is mandatory that the plaintiff cover the defendant’s attorney costs. Other states leave that to the discretion of the judge.
From left, George Freeman, Media Law Resource Center; Floyd Abrams of Cahill Gordon & Reindel; and Jim Rutenberg of the New York Times at the “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?” on Saturday at the ABA Annual Meeting in New York City.
According to the Media Law Resource Center, 28 states, the District of Columbia and Guam had adopted some form of anti-SLAPP legislation as of 2014. This form of remedy—and the other robust free speech defenses against libel suits in the United States—were not available to another panelist, David Walsh of the Sunday Times, when he was sued by cyclist Lance Armstrong in 2004.
Walsh, who works as a journalist in the United Kingdom, had been investigating Armstrong for doping. He had conducted hours of interviews with people who had worked with Armstrong and had carefully researched enough material for a book.
But when he published an article with the evidence he’d uncovered in the Sunday Times, Armstrong successfully sued Walsh and the newspaper for libel in the British courts, halting the publication of the book in the U.K. and obtaining a £1 million settlement (about $1.2 million) and a written apology from the newspaper. Walsh said other media outlets in the U.K. were then scared off from reporting on the allegations against Armstrong. Another four years went by before they were willing to publish more allegations against him.
In 2013, after more evidence had come out against him, Armstrong finally admitted that he had been using performance-enhancing drugs, and he said what Walsh had published about him was true. Walsh said the cyclist has since repaid the Times for the settlement money he won from them.
Walsh told the audience the libel laws in the United States were much better than the U.K., “and long may you have them.”
One panelist who is concerned that U.S. libel standards and anti-SLAPP legislation might make the press too reckless was Tom Clare of Clare Locke. Clare has represented many plaintiffs in libel suits and recently was able to reach a settlement with Rolling Stone for his client, Nicole Eramo, a former University of Virginia associate dean. Eramo had sued the magazine for defamation for the way it portrayed her in its retracted 2014 article about an alleged gang rape on the university’s campus.
Clare said that while he views the seminal libel case New York Times v. Sullivan as a good decision by the U.S. Supreme Court, the case law that has been built on top of that 1964 opinion has often unfairly prevented people who suffered real harm from being able to redress their grievances in court. He also worries that anti-SLAPP laws unfairly block plaintiffs from being able to conduct a reasonable amount of discovery to support their claims.
Prather said anti-SLAPP legislation has been an important defense against “libel bullies” and identifies Trump as a libel bully himself. Trump has brought seven libel suits against people and was unsuccessful in all but one, in which he achieved a default judgment in arbitration when the defendant failed to appear.
Prather said it is ironic that Trump has been so against the current libel laws because he has benefited from them. Many inflammatory statements and tweets the president has made against people can’t lead to lawsuits because he has First Amendment and libel protections.
In closing, Freeman asked Rutenberg what keeps him up at night as an American reporter. Rutenberg said he has three major fears: The first is the government could use the law as a cudgel to silence reporters. The second is rhetoric against the press could become so inflamed that it could result in violence and someone being hurt. The last is through labeling facts as fake news and ending all public confidence in any media, the concept of truth could be destroyed.
Follow along with our full coverage of the 2017 ABA Annual Meeting.
