President Trump has long had a love-hate relationship with the news media. He basks in Time magazine covers, and adores opining for reporters from the nation's top newspapers. And then he complains about them on Twitter and in interviews with other journalists.
But has he finally had enough?
ABC's Jon Karl asked White House Chief of Staff Reince Priebus on Sunday's This Week whether the president was serious about proposing to change libel laws to get tougher on the news media. ("The failing New York Times has disgraced the media world. Gotten me wrong for two solid years," Trump tweeted a month ago. "Change libel laws?") Karl pressed Priebus: "Is he really going to pursue that?"
"I think it's something that we've looked at," Priebus replied, "and how that gets executed or whether that goes anywhere is a different story." Priebus went on to attack the integrity of media outlets in their coverage of the Trump administration. And he's not wrong. The Times, for instance, inadvertently boosted Trump's argument recently by an ill-advised effort from their sports editor to paint Trump as unpopular by falsely comparing photos of different Super Bowl championships by the New England Patriots. "I think that newspapers and news agencies need to be more responsible with how they report the news," Priebus continued.
"I don't think anyone would disagree with that," Karl replied. "But … do you think the president should be [able] to sue The New York Times for stories he doesn't like?" Priebus brushed it off: "I already answered the question. I said this is something that is being looked at."
Look, bad reporting and "fake news" might frustrate those in power. Team Trump is not wrong to be miffed about how they're portrayed by the press. But expanding libel and slander laws would create far more problems than it would solve. It would allow the powerful to silence the powerless. And it would create something much worse than a chill to free speech — it would be more like an Ice Age.
The issue isn't actually libel and slander laws per se, but a Supreme Court decision more than 50 years ago. In New York Times Co. v Sullivan, the court unanimously ruled in 1964 that sharply limited libel claims from "public figures" — politicians in Sullivan, but also others who seek out public fame — to instances of clearly false reporting resulting from "actual malice." That surpasses malicious intent, as plaintiffs must essentially prove that the respondents set out to purposefully and knowingly smear them with false reporting. That does not make it impossible to win a libel suit, but it establishes a very high bar for public figures to punish speech with which they disagree or find objectionable.
What would happen if Congress passed a statute which dispensed with Sullivan? Most likely, the Supreme Court would strike it down, on the same basis which the earlier court found in Sullivan 53 years ago — the First and Fourteenth Amendments. However, if it survived such scrutiny, or if it miraculously got ratified as a constitutional amendment, it would suddenly become very, very dangerous to assert any derogatory facts or conclusions about the rich and powerful, regardless of how well critics might be able to support them. Media outlets like The New York Times, broadcast networks, and cable channels would have the resources to fight in court over those claims, but likely would end up attempting to avoid lawsuits in general by restraining their reporting and analysis. Smaller media outlets could find themselves put out of business quickly, either through extraordinarily high liability insurance premiums or through one or two costly court actions.
We might rid ourselves of some bad reporting and negative coverage of public figures. We would also see an end to some good reporting, simply out of an abundance of caution on the side of risk management. The media would surely find it easier to provide more hagiographic coverage of politicians and the powerful, leaving Americans more in the dark than ever.
This controversy does underscore one important point about the virtue of the First Amendment. The powerful — whether they be politicians complaining about coverage or trying to shut down dissent by labeling it "hate speech" — recognize its ability to hold everyone accountable. Just because some aren't terribly good at its practice is no reason to disarm everyone.