The Future First Amendment

Supreme Court nominee Neil Gorsuch may be a vital restraint on Trump's war with the free press.

February 2, 2017

Cross posted at U.S. News & World Report

"Heed Their Rising Voices," declared a 1960 full-page ad in The New York Times, paid for by a group of civil rights activists trying to get Dr. Martin Luther King Jr. out of a jail cell in Alabama. It was a call to action by way of indictment, recounting the racially charged offenses inflicted on African-Americans living in the segregated South. It also got some of its facts wrong, like mistaking the number of times Dr. King had been arrested (four times, not seven). In response, the Montgomery police commissioner filed a libel lawsuit against the Times alleging that the misstatements damaged his reputation. But the Supreme Court ruled against him, and in the process, established seminal First Amendment safeguards for reporting and criticism of official government conduct that are now under fire from the Trump White House.

New York Times v. Sullivan stands as a monolith in Supreme Court history, marking one boundary between executive authority and the Fourth Estate. Writing for a unanimous court, Justice William Brennan wrote that a statement must be made with "actual malice" for a public official to successfully sue for a "defamatory falsehood relating to his official conduct." (Defamation is a general term for harming reputation: Libel is written defamation; slander is spoken.) In other words, it is lawful to publish false news reports or pen criticism of official conduct that is based on false information, provided the author did not know it was false or act with "reckless disregard of whether it is false or not." In practice, this means that critics of official conduct cannot be held liable based on careless reporting practices, even if motivated by ill will or a desire to increase profits.

Of course, "fake news" is not desirable speech. But as President Trump and the rest of the nation are now well aware, it is sometimes inevitable. And in the context of public figures, it is also constitutionally protected. According to the Supreme Court, to allow "punishment of error" runs the risk of inducing media self-censorship, deterring not only false speech, but also timely news and "speech that matters" about government officials and the functioning of our democracy. In short, the court has purposefully set a high bar for public officials, like the president, to sue the media over their reporting for the sake of maintaining a free, open and informed society.

Trump is not a fan of this idea. As a candidate for president, he pledged to "open up our libel laws" to make it easier for officials to sue news organizations, regularly rallying crowds against "dishonest" newspapers like The New York Times and Washington Post as part of his stump speech. "You see, with me, they're not protected, because I'm not like other people," Trump explained.

As president-elect, Trump publicly accused CNN of being "fake news" in his first press conference since inauguration. He refused to take a question from the network's White House correspondent, reportedly upset over the network's decision to publish a story about possible ties between the Russian government and his presidential campaign. He also demonized BuzzFeed News as "a failing pile of garbage" for reporting the full, unverified and scandalous details. (The allegations are now the subject of two congressional inquiries and an federal investigation led by the FBI, National Security Agency, CIA and Treasury Department.)

And as president, Trump has continued to go to "war" – his term – with the media. At first, it was over his demonstrably small crowd size, criticizing the "dishonest media" during a speech at CIA headquarters on the first morning of his presidency. Within a week of taking office, Trump's chief White House strategist told the media to "keep its mouth shut and just listen for a while," dubbing members of the press "the opposition party" of the Trump administration. And just this Wednesday, President Trump again derided CNN as "fake news" during a White House press event honoring Black History Month.

Proponents of a robust and independent press might take some solace in knowing that it would be extremely difficult for Trump to broaden the libel rules directly. Libel is a matter of state law, over which the president has no control. But the First Amendment principles established by the Supreme Court have tempered those laws, and Trump could seek to change the court itself with his nominee, Judge Neil Gorsuch of the Tenth Circuit Court of Appeals.

Should he be confirmed by the Senate, Gorsuch would sit on the same court that made New York Times v. Sullivan the law of the land. He could vote to overturn it, or else chip away at the constitutional safeguards that have evolved around it since 1964. It is may be somewhat heartening, therefore, to learn that Gorsuch wrote a colorful opinion in a 2011 defamation case, Bustos v. A&E Television Networks, refusing to rule against the media for calling a prisoner "a member of the Aryan Brotherhood prison gang … when, as it happens, [he] merely conspired with the Brotherhood in a criminal enterprise." Judge Gorsuch emphasized that a "substantially true" statement is a defense to defamation with "constitutional patina," describing it as a de facto "First Amendment imperative." He also remarked at the "transmogrification" in the law since New York Times v. Sullivan requiring a plaintiff to "[prove] the falsity of a challenged statement if he is a public figure or the statement involves a matter of public concern."

The Senate should ask Gorsuch if he believes in the principles that animated the New York Times v. Sullivan court and if he will continue to uphold them as a Supreme Court justice. Senators should ask him if he would reach the same conclusion in Bustos had the plaintiff been the president instead of a prisoner.

For more than 50 years, the Supreme Court has made it hard for public officials to sue media organizations for libel. Both liberal and conservative justices have repeatedly joined to create this First Amendment "breathing space" in American society. To "open up our libel laws" would be to discourage protected speech and devalue the marketplace of ideas. This country deserves a Supreme Court that will continue to uphold First Amendment protections for the press and serve as an independent check on the president.