In 1734, a 1st generation American and New York printer/journalist named John Peter Zenger was accused by the Crown of libel against New York’s royal governor. His lawyer, Andrew Hamilton (no relative of Alexander), argued that while Zenger had indeed criticized the governor – had indeed committed libel as it was defined back then – what he had written in his newspaper was the truth (truth was not a defense against libel in those days). Despite the law, despite the judge’s attempts to thwart the defense, the jury found Zenger not guilty and Americans began the slow march toward freedom of speech and freedom of the press.
What is remarkable about this incident is that it showed how free we already were – that we had real freedom of the press – 42 years before that precious moment when we declared our independence from Mother Britain, 54 years before we codified freedom of the press in our Constitution’s First Amendment. We were free because our monarch lived 3000 miles away across a huge ocean (a lesson we seem not to have learned whenever we try to dictate how other nations should conduct their business), and because we had not invented our own royalty yet (“We’re a democracy, right?” “Until you seem on the edge of anointing a King over all of us.” Like the Israelites of Samuel’s time, many Americans could not imagine life without an absolute monarch; some Americans still can't).
The Bill of Rights was ratified in December 1791. Free speech and a free press – two of the four principles chiseled into the First Amendment – became our guiding first principles 57 years after the Zenger trial. But it did not take us long to ignore this Constitutional Right to freedom of the press with John Adams’ Sedition Act, as journalists continued to be prosecuted and convicted for libel against the Adams’ administration despite the precedent set in the Zenger case, despite truth.
And on, well into the 20th century. As is so often the case in these great United States, our precious principles (in this case, the requirement of Untruth in a libel charge) are sometimes officially ignored and we the people fail to notice or to protest. The McCarthy Era (early 1950’s for those too young to remember) comes to mind, when honorable Americans were smeared (libeled, with malice and untruth, often losing their livelihoods) by the junior senator from Wisconsin; and it was years before we got up the courage to say “enough.” We are, after all, a nation of laws – except for when we forget.
In today’s world, libel (written speech not protected by the First Amendment) and slander (spoken speech not protected by the First Amendment) are crimes that require a) malicious intent (to do harm or at least mischief), b) falsehood, and c) the likelihood of economic injury or harm to one’s reputation (and the burden of proof is as always on the prosecution/plaintiff). The perfect example is person A says something nasty (and untrue) about person B that gets person B fired from his job. Person B should prevail in his libel suit against person A. There is one more angle to libel law: public persons cannot use these laws to protect them from defamation and harm; it would clog the Courts beyond endurance, and public persons have an adequate platform to answer the charges levelled against them and to counter-charge, so at least it would be a fair fight that has no need of judicial intervention.
Surely, President Trump has an adequate platform for self-defense and counterattack on Twitter alone, not to mention all the time he has spent campaigning for re-election since the day he took office in January 2017. Citizen Trump would love to fill our nation’s prisons with journalists who believe him unfit to be president, no better proof of his unfitness than wanting to change the law to benefit himself, than wanting to undermine freedom of the press to silence his critics.
Yet, perhaps Citizen Trump is on to something. When legitimate media (MSM or otherwise) tells a lie about the president, he has recourse: Twitter, free news coverage and his next campaign rally. When you or I are victims of malicious lies, we too have recourse: libel laws and the Court system.
But the Public has no recourse when it is lied to. Perhaps the Public needs protection from lies spoken by its proper news sources and its elected officials. When a proper news source tells us a lie, it injures us, and it needs to be held to account. Any organization that calls itself a proper news source IS one: Fox News, the NY Times, ABC, CBS, NBC, CNN; NOT the National Enquirer, NOT Facebook, NOT Twitter. When a politician tells a lie, he needs to be held to account as well. Time in prison, not meaningless fines.
Who should have standing to sue our homegrown liars? The injured party, of course, the Public! A petition with at least 1,000 names ought to be able to launch a libel suit against a news source or an elected official for libel (as telling an untruth to the American public is always malicious).
So, no, Mr. president, we won’t change libel laws for your protection, but we will expand them to protect ourselves – as we need protection from all the lies you tell us, and from all the (supposed) lies that the MSM and Fox News tell us, too.
Think about it.
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