Professor Docter, where do you think libel lawsuits rank among threats to freedom of the press under the new president?
The challenges are hard to rank, there are so many. I mean, a huge problem is access. President Trump certainly can’t censor the press; the First Amendment’s pretty clear about that. So he’s trying instead to limit who gets access to officials. It’s pretty unprecedented, not allowing access to even established news organizations like CNN because he doesn’t like the way that he is being covered.
Another disturbing trend is the unprecedented attack on the press – trying to undermine the credibility of the press, making the press into the “opposition party.” He went so far as to call the press “the enemy of the American people.” That’s dangerous. We need an active, involved, fact-checking press now more than ever.
Are libel lawsuits a threat on that scale?
Yes! They are most definitely a threat to press freedom, and our current president is notorious for bringing libel actions when he feels he has been covered unfairly.
Now, in our country, it is very, very difficult for public figures to succeed on libel actions. You’ve got to show actual malice. However, you can drain a person’s resources and emotional energy by bringing these libel lawsuits. If you’re not likely to prevail, it’s really a form of bullying people.
Take the example of the women who accused Trump of sexual assault. Just by threatening lawsuits, other women who might have come forward may have been deterred.
You’ve written that bloggers and people posting on social media should get the same legal protections granted to professional journalists. Why is that?
More and more people are getting their news and their information from nontraditional media. A study by Pew Research Center found that the stories covered by blogs and Twitter and YouTube – they looked at those three platforms – were really different from what the New York Times covered. So we want to protect nontraditional sources.
If we don’t apply the same standards, then the risk is that they’re going to be chilled, that they’re going to engage in self-censorship, because they’re fearful of being sued.
Is it a good thing, then, that it’s harder now to tell the difference between bloggers and journalists?
Yes, the lines should be blurred. Nontraditional media can serve really important functions. Even years back, the scandal about President Clinton and Monica Lewinsky was broken by the Drudge Report. I’m not a huge fan of the Drudge Report. He does not subscribe to journalistic norms, but it was an important story that the public needed to hear, and there are lots of examples of that. So, the definition of a journalist should be broad.
Should it be broad enough to include everyone with 200 followers on Facebook?
That shouldn’t matter in terms of how you’re treated under the law. I mean, there are a couple of places where it does matter.
Shield laws protect journalists from revealing confidential sources, and they protect the news-gathering process so that confidential sources don’t dry up. And the courts pretty much just want those to protect journalists. They don’t want to protect anyone with a computer from having to reveal confidential sources.
So that’s one area. A second, contested area is libel laws protecting people from defamation. The federal courts have been pretty broad in their definition of who’s protected. But some state courts only want to offer this broad protection to the institutional, traditional media. My view is that it’s important to protect anyone who is writing on issues of public concern.
Does that also mean that people putting up social media posts need to be held to journalists’ standards of conduct?
You should have the same protections and responsibilities. You should also behave ethically. You should also not publish fake news. You should also be accurate. Bloggers and people who post in nontraditional media don’t do themselves any favors by not following journalistic standards and journalistic norms.
When people do make mistakes, the First Amendment provides protection to them even for some false statements that are made in good faith and without malice. And that same standard should be applied whether you’re a blogger or work for the New York Times. All that’s required is that you intend to disseminate information broadly to the public.
In a way, regular people have always done that, right? Through gossip, newsletters, etc.
I think this is all about the rise of social media. Because sure, people might have disseminated news on their own before the internet, but there were clear gatekeepers and it was difficult to reach large audiences. The barriers to entry are much lower now than they’ve ever been in the past.
During the presidential campaign, Trump said he wanted to “open up” libel laws. Could that turn out to be an important moment in the history of the American press?
My hope is that it’s only a threat. In the reports that I’ve read, what he would like to do is to make our libel laws similar to England’s, which put the burden of proof on the news organization rather than the person suing. It’s easier for public officials to succeed on libel actions in England than here.
I’m hopeful that the Supreme Court will not change the precedent that we’ve established for over 50 years, that the First Amendment provides clear, important protections from libel actions. We need that so that there’s not self-censorship, so that news organizations and bloggers are free to write pieces that are critical of those in power.