Threats Multiply to our Free Press

Well, yes, these times are beyond strange. A few weeks before Donald Trump was
certified as the winner of last year’s Presidential election, ABC settled a defamation suit with Trump for $15 million. Trump claimed he had been defamed when ABC anchor George Stephanopoulos said on the air that he had been found liable for rape. In actuality, Trump argued, he had only been found liable for sexual assault, as well as for defamation of the writer E. Jean Carroll.

Think about it: The guy who has become our President for the next four years argues that a jury found him liable only for sexual assault.

Using litigation to intimidate critics may have become business as usual, but getting the kind of settlement ABC agreed to has not. Ironic or not, it has long been hard for an aggrieved politician to collect damages against a news organization that says mean things about him. This is America, so you can always sue the bastards, but ever since the Supreme Court’s 1964 decision in New York Times Co. v Sullivan, you can’t collect damages for allegedly defamatory statements about a public figure unless those statements are knowingly false or made with ”reckless disregard” for the truth. In effect, the Court recognized a right to be wrong.

Some people have suggested that ABC – or its parent company, Disney – wanted to stay on the good side of an incoming President. But that may not have been all. Would a court have ruled against ABC? Maybe. Arguably, Stephanopoulos’ statement met the standard for “reckless disregard.”

The distinction between rape and sexual assault had been part of the extensive media coverage of Trump’s legal loss to E. Jean Carroll. Media reported the trial judge’s statement that while Trump’s alleged conduct fit most people’s definition of rape, it didn’t fit the requirements of the strict New York law. And reportedly, an executive producer had told Stephanopoulos more than once not to use the word “rape.” A First Amendment defense would not have been a slam dunk.

Hair-splitting over Trump’s complaint against ABC aside, we’ve entered fraught days for the future of public discourse in the United States. Consider some of the news in the three months or so before Trump’s inauguration:

• Washington Post owner Jeff Bezos killed the Post’s endorsement of Kamala Harris for President. There’s no lack of plausible motives. One can speculate that Bezos wanted to stay on the good side of an incoming President, avoid anti-trust scrutiny of Amazon, or get government contracts for his Blue Origin space company.
• Los Angeles Times owner Patrick Soon-Shiong kills a Times editorial endorsing Kamala Harris.
• Trump sues the Des Moines Register plus the paper’s parent company, Gannett, and the Iowa poster Ann Selzer for reporting poll numbers that put Harris ahead. (Trump’s complaint alleges a violation of the Iowa law against fraud.)
• Meta/Facebook owner Mark Zuckerberg kills professional fact checking. Internet platforms, treated not as publishers but as bulletin boards, are protected from liability for whatever third parties post on them by Section 230 of the Federal Communications Act. There has been talk about scrapping or at least modifying this Section 230 immunity.

Zuckerberg may have started fact checking as one of the Internet platform’s efforts to weaken the case for junking Section 230. Now, it seems clear that 230 will be alive and well for the next four years, and there’s a lot more to fear from antagonizing the new Commander in Chief into anti-trust action.

Conservatives in both the House and Senate have introduced bills that would defund the Corporation for Public Broadcasting, which helps support both PBS and NPR. Defunding public broadcasting has been on some conservatives’ agenda ever since Lyndon Johnson got Congress to establish the corporation in 1967, but The New York Times deems the threat this time particularly acute. Defunding appears in the text of Project 2020 and on Elon Musk’s to-do list.

Trump has also repeated his threat to change federal libel laws. the ACLU says that he wants to “take a strong look at our country’s libel laws,” suggesting it should be easier to collect damages for statements he considers defamatory. He has been saying similar things for years.

Various people have pointed out that the libel laws Trump complains about aren’t federal; they’re state laws over which a President has no legal control, though Trump could pressure compliant Republican state legislatures to change those laws. Under Sullivan, the states can’t get away with making it easier to collect damages from critical journalists. The way around that inconvenience would presumably be to have the Supreme Court re-think Sullivan.

Trump is already delivering on his promise to go after the press by filing more costly suits. He shouldn’t have to do it personally, he has said; the Justice Department should be doing it. Which leaves to the imagination how he intends to instruct his new Attorney General and what his government will try to wring from the Supreme Court. Justices Thomas and Gorsuch have raised questions about how well Sullivan addresses the media landscape of our time. These are legitimate questions.

What is a legitimate news outlet these days? Who is a journalist? “Thanks to revolutions in technology,” Gorsuch has written, “today virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world. The effect of these technological changes on our nation’s media may be hard to overstate. Large numbers of newspapers and periodicals have failed. Network news has lost most of its viewers. With their fall has come the rise of 24-hour cable news and online media platforms that ‘monetize anything that garners clicks.’”

Should Internet platforms be liable for defamatory statements posted on them? Is Sullivan a relic of the good old days, when America was full of large and well-staffed newspapers, and only three broadcast television networks divided up the national audience? All these are legitimate questions. But they don’t seem to have very desirable answers.

Who gets to decide what is a legitimate news source or who is a legitimate journalist? Or what is ”reckless” disregard for the truth? Or, for that matter, what is the truth? Do we want the current government to decide it? The current Supreme Court? Of course, First Amendment protections are already in the hands of the courts. If we only had courts we could trust.