Lawsuits, Libel, and Lampooning: An Update on the War on the Press

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Digest for the Week of February 18-22, 2019

After President Donald Trump’s first year in office, we documented the President’s war with the press, looking at the estimated 2,001 false or misleading claims he made in the first 355 days of his Administration, Senator John McCain’s (R-AZ) op-ed calling on the President to “stop attacking the press,” and Senator Jeff Flake’s (R-AZ) remarks on the Senate floor on the importance of truth to a democracy. 

More than year later, some things have changed. For one, President Trump seems to be lying more often: The Washington Post’s Fact Checker database estimates President Trump averaged more than 15 false or misleading statements per day during 2018, almost triple the rate from the year before. Meanwhile, Senator John McCain passed away from cancer in August and Senator Flake left the Senate to join CBS news. 

But President Trump’s war on the press hasn’t stopped. 

This week, he praised a $250 million libel lawsuit against the Washington Post, got some support from a Supreme Court Justice to review the nation’s libel laws, and issued his sharpest words yet against the New York Times, calling the newspaper “a true ENEMY OF THE PEOPLE!”

Political journalists often ask the question: Is Trump winning his war on the media? Winning or losing, the point is that the war is ongoing. As we stated a year ago, the question should be: Are the American people the losers in this fight? And after this week, we have to ask: Is this what winning looks like? 

Enter Sandmann: President Sides with Student in Lawsuit Against The Washington Post

In a tweet on Wednesday, President Trump weighed in on a new libel lawsuit against the Washington Post, siding with the plaintiffs — the family of Nick Sandmann, a Covington Catholic High School student from Kentucky who was involved in the January encounter at the Lincoln Memorial with a Native American man that went viral on social media.

According to the lawsuit, The Washington Post “bullied” 16-year-old Sandmann because he was a “white, Catholic student wearing a red ‘Make America Great Again’ souvenir cap.” 

“In a span of three days in January of this year commencing on January 19, The Post engaged in a modern-day form of McCarthyism by competing with CNN and NBC, among others, to claim leadership of a mainstream and social media mob of bullies which attacked, vilified, and threatened Nicholas Sandmann, an innocent secondary school child,” reads the complaint. It added, “The Post ignored basic journalist standards because it wanted to advance its well-known and easily documented, biased agenda against President Donald J. Trump by impugning individuals perceived to be supporters of the President.”

The President took to Twitter, quoting from the complaint, and added in is tweet "...Covington student suing WAPO. Go get them Nick. Fake News!” 

The Sandmanns are seeking $250 million in damages, the amount Amazon CEO Jeff Bezos paid when he bought The Post in 2013.

It’s not clear why the lawsuit is targeting the Washington Post specifically, since plenty of news outlets covered the story extensively. Furthermore, in order to prevail in libel suits, plaintiffs have to meet difficult standards. 

But, libel cases may become easier to win...

Add Another Critic of Libel Law

The issue of libel was already getting national attention this week. On Tuesday, Supreme Court Justice Clarence Thomas called for the Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment in a way to make it harder for public figures to prevail in libel suits. The Sullivan ruling established that public figures have to prove that a piece written about them was false, that it harmed their reputation, and that the writer acted with “actual malice” -- that is, with knowledge that it was false, or with "reckless disregard" of whether it was false or not.

Justice Thomas said the Sullivan decision had no basis in the Constitution as it was understood by the people who drafted and ratified it.

“New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote in a concurring opinion this week.

In Justice Thomas’s view, the First Amendment was not intended to limit the authority of states to protect the reputations of their citizens and leaders as they saw fit. When the First Amendment was ratified, he wrote, many states made it quite easy to sue for libel in civil actions and to prosecute libel as a crime. That was, he wrote, as it should be.

“We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” Justice Thomas wrote. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”

Justice Thomas joins President Trump in wanting to reconsider libel law.

“I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” Trump said on the campaign trail. “We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

As president, Trump said, “Our current libel laws are a sham and a disgrace and do not represent American values or American fairness.”

The president is no stranger to defamation claims, having filed several of them himself -- without success. In 2009, a New Jersey judge dismissed a $5 billion suit brought by Trump against a biographer, Timothy L. O’Brien. Trump had claimed that O’Brien understated his personal wealth. Trump failed to demonstrate “clear and convincing evidence to establish malice,” the New Jersey judge ruled. 

“The libel laws in this country have never been fair,” Trump said in 2009.

ENEMY OF THE PEOPLE!

President Trump tried to discredit a New York Times report that said he asked his then-acting Attorney General Matthew Whitaker whether he could put an ally in charge of an investigation into hush money payments during the 2016 campaign. 

According to The New York Times article, President Trump called the Attorney General shortly after Whitaker assumed the post late in 2018 to ask whether Geoffrey S. Berman, the U.S. attorney for the Southern District of New York and a perceived Trump loyalist, could be put in charge of an investigation that included Trump’s role in silencing two women who alleged past affairs with him.

On Tuesday, the day after the article was published, the president was asked about his request to Whitaker. “No, I don’t know who gave you that, that’s more fake news,” President Trump told reporters. “There’s a lot of fake news out there. No, I didn’t.”

The next day, President Trump took to Twitter to up his claims.  “The New York Times reporting is false,” President Trump said. “They are a true ENEMY OF THE PEOPLE!”

He also wrote, “The Press has never been more dishonest than it is today. Stories are written that have absolutely no basis in fact. The writers don’t even call asking for verification. They are totally out of control. Sadly, I kept many of them in business. In six years, they all go BUST!”

New York Times Responds

The New York Times refuted the President’s claims that writers did not verify the story. One of the reporters of the article, Maggie Haberman, insisted reporters did reach out to the White House for comment, and called the president’s accusations a lie. 

They [the White House] chose not to engage, and afterwards, the president acts surprised. Whether his aides are not telling him what we are looking at or whether this is a game and he knows what it is and he’s pretending, I can’t read his mind. We certainly follow normal reporting practices and went over it at length with the White House and the Department of Justice.

New York Times Publisher  A.G. Sulzberger also responded to President Trump’s attacks:

On two occasions, including an Oval Office interview on January 31, Sulzberger has urged President Trump in person to abandon his use of the term “fake news.”  When Sulzberger said foreign leaders were increasingly using the term “fake news” to justify suppressing independent scrutiny, President Trump replied: “I don’t like that. I mean I don’t like that.”

Indeed, the Committee to Protect Journalists’ U.S. Press Freedom Tracker notes: "[W]orld leaders from Cambodia to the Philippines have echoed terms like ‘fake news’ in the midst of crackdowns on press freedom. And the rhetoric has sometimes resulted in harassment of individual journalists in the U.S., where the CPJ is aware of several journalists who say they were harassed or threatened online after being singled out on Twitter by Trump."

But, in a common pattern whenever the president speaks about the press, President Trump quickly refocused on his personal grievances. “I do think it’s very bad for a country when the news is not accurately portrayed,” he said. “I really do. And I do believe I’m a victim of that, honestly.”

Conclusion

Trump’s war on the press continues. But, perhaps, the president's rhetoric can be used to reaffirm the role of an uninhibited, robust, and wide-open free press.

“America’s founders believed that a free press was essential to democracy because it is the foundation of an informed, engaged citizenry. That conviction, enshrined in the First Amendment, has been embraced by nearly every American president,” wrote Sulzberger this week. While President Trump may be retreating from that “distinctly American principle", rest assured that the Benton Foundation and countless others working for the public interest stand firm behind the conviction that the free press is not the enemy of the people -- but rather, like America's founders believed, essential to democracy.

Follow along daily by subscribing to our daily Headlines newsletter. 

Quick Bits

• Draft FCC Broadband Report: Digital Divide Is Narrowing Substantially (FCC)
• Senators Express Concern with FCC's Broadband Coverage Maps (US Senate)
• Hundreds of 2018 E-rate Applications Still in Limbo (Education Week)
   

Weekend Reads (resist tl;dr)

• The coming digital divide: What to do, and not do, about it (Blair Levin)
• Digital Distress: What is it and who does it affect? Part I and Part II (Roberto Gallardo, Cheyanne Geideman)
• How Tim Berners-Lee's Inrupt project plans to fix the web (Wired)
• Partisan Rift Threatens Federal Data-Privacy Law (Wall Street Journal)

ICYMI from Benton

Let’s Give Schools a Tool to Solve the Homework Gap, John Windhausen Jr

Trump Administration Update on the American Broadband Initiative, Robbie McBeath

Feb. 25 - March 1, 2019 Events

Feb 27 -- Policy Principles for a Federal Data Privacy Framework in the United States, Senate Commerce Committee hearing

Feb 27 -- The INCOMPAS 2019 Policy Summit

March 1 -- Who’s Afraid of Big Tech?, Cato Institute

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