During his campaign, now-President-elect Trump threatened to “open up" our libel laws. Given that law is made by legislatures and the courts, not the President, it was a mainly empty threat -- but not to be altogether dismissed.
In recent years, libel laws have been weaponized by billionaires who combine their deep pockets with public contempt for the press to exploit weaknesses in otherwise ironclad First Amendment protections. And fighting those cases can be ruinously, even fatally, expensive.
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BROOKE GLADSTONE: This is On the Media. I’m Brooke Gladstone.
BOB GARFIELD: And I’m Bob Garfield. During his campaign, now- President-elect Trump made this threat to the media:
DONALD TRUMP: I’m gonna 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.
We’re gonna open up those libel laws.
BOB GARFIELD: As law is made by legislators and the courts, not the president, it was a typically bombastic and mainly empty threat, but not to be altogether dismissed. In recent years, libel laws have been weaponized by billionaires who combine their deep pockets with the public contempt for the press to exploit weaknesses in First Amendment protections. And fighting those cases can be ruinously expensive.
Emily Bazelon is a staff writer at The New York Times Magazine, who published a piece called “Billionaires vs. the Press in the Era of Trump.” Emily, welcome back to OTM.
EMILY BAZELON: Thanks for having me.
BOB GARFIELD: Three elements here: There’s the economic chaos in media, there’s the rise of proxy litigants and there’s Trump. So let’s start with him. It’s kind of an odd thing to promise to change libel law because it's as settled as any settled law is in this country, no?
EMILY BAZELON: Yes, in 1964 we have this famous revered case called New York Times v. Sullivan. The Supreme Court ruled in favor of The New York Times. At issue in the case was an advertisement that had been paid for by a large group of civil rights supporters. It had some small errors in it and the person who sued, who was a city commissioner in the town of Montgomery, Alabama, said that this ad reflected badly on him. And, at the time, the usual standard was that if the statement being sued over was false, the plaintiff won. This ad was false in that it had these small mistakes in it. The Supreme Court really raised the bar for plaintiffs to win in a libel suit in its decision in this case, creating what we know as the actual malice standard. The plaintiff has to show not just that a statement is false but also that it was made with knowing or reckless disregard for the truth. It’s hard to show that, and so traditionally the press has really been protected by that high bar. And Donald Trump as president doesn’t have any direct power to change that.
BOB GARFIELD: So, in other words, a public figure, like a president, he has to show that the news organization either failed entirely to vet the truth of the statement in question or knew that it was a lie, to begin with. The only person I can think of in public life who has talked about political figures in a way that could wind up [LAUGHS] in a libel suit is Donald Trump!
EMILY BAZELON: That’s right. And, actually, a very well-known First Amendment lawyer named Floyd Abrams who’s usually not on the side of bringing a libel suit, he recently raised the possibility of media figures suing Donald Trump for calling them dishonest or in other ways trying to shred their credibility.
BOB GARFIELD: In the last year or so, notably in the libel case against Gawker, a billionaire, Peter Thiel, essentially bankrolled the entire case, and it was not an isolated incident. What happens to libel law in this country when third parties are willing to fund even dead-on-arrival cases in order to punish some publisher defendant?
EMILY BAZELON: Well, that's a really good question. And what we saw with Peter Thiel was this - essentially a secret campaign, where he was funding a lawyer named Charles Harder to bring some unknown number of suits against Gawker. The case that happened to be the winning ticket for an enormous jury verdict that caused Gawker to go bankrupt was a privacy case on behalf of Hulk Hogan. Gawker had published a brief clip from a sex tape of Hogan. But there were a number of suits that were out there as kind of possibilities, almost as if Thiel was, you know, spinning the roulette wheel until he hit on a winner. And this idea of using the law as a weapon to go after a publication and to try to kill it, that’s a pretty new phenomenon. It's a kind of aggressive weaponizing of litigation.
BOB GARFIELD: And it's almost not a question of whether the litigation is successful. It's the very fact of being sued that is so expensive for publications that even if they ultimately prevail they’re bankrupt. What protection do news organizations have against this kind of suit whose goal is merely to inflict the economic punishment of litigation?
EMILY BAZELON: I’m glad you brought that up because it's quite hard as a plaintiff suing the press to win a libel suit, but it's not hard to get into court. And once you get into court, you invoke all of legal process – discovery, turning over documents, making people sit for depositions. All of that can be expensive and time consuming and painful for writers and editors to deal with.
There are 28 states that have what are called anti-SLAPP laws on the books, and these are designed to throw out quickly frivolous lawsuits, but it's not that hard to pick a state that does not have an anti-SLAPP law on the books. The suit against Gawker was in Florida and there is no anti-SLAPP there. The small magazine Mother Jones faced a libel suit from another billionaire that was in Idaho, another place where there is no anti-SLAPP protection on the books.
BOB GARFIELD: Are there any prospects for national anti-SLAPP legislation? The GOP has shown quite an affinity for the First Amendment over the years. Could there be a national standard so that someone like Peter Thiel can't go jurisdiction shopping in order to file such a suit?
EMILY BAZELON: Sure, there could but I would argue that the Republican or conservative affinity for the First Amendment is pretty selective. So they liked it, for example, in Citizens United, when it's allowing for much more money to flow into elections. The idea that they are going to make sure to pass a federal law to prevent billionaires from suing the press, that seems quite unlikely to me.
One thing that would really help publishers in these kinds of suits would be damages caps. So, for example, in the United Kingdom it’s much easier to win a libel suit. In America, we usually think of the United States law as superior for this reason. But there is an unofficial cap on damages in the UK of 250,000 pounds. And that means that you can’t sue to try to take down and bankrupt a publication. You can sue to defend your reputation and to get some money, which is, you know, usually what we think of, the purpose of litigation.
BOB GARFIELD: I don’t want to turn this into an “us and them” issue but if Trump has whipped up a frenzy among his conservative supporters about the press and he’s done this largely through the right wing media, which are often the vectors for some of the ugliest smears, mainly against politicians, I wonder if what’s good for the goose is good for the gander? Are there any liberal billionaires out there scouring the Breitbarts of the world, looking to see if they can pull a “Thiel”?
EMILY BAZELON: It’s possible that it’s out there. I think though it just seems like a misuse of the courts. Libel law is about defending one’s reputation. It shouldn’t be about trying to attack a publication because you don’t like what it’s saying. And I would argue that right now [LAUGHS] we need an aggressive press more than ever. We have a president coming into office who doesn’t respect the norms and conventions of traditional coverage. We have no idea whether he’s going to hold press conferences. He puts out lies on Twitter or in interviews that become a kind of virus in the public discourse. All of those challenges, I don’t think the press has really figured out how to deal with. But what we need is a press that is not cowed and is not supine and is giving a clear accounting of this coming presidency.
BOB GARFIELD: Emily, thank you so much.
EMILY BAZELON: Thanks for having me.
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BOB GARFIELD: Emily Bazelon is a staff writer at The New York Times and the Truman Capote Fellow for Creative Writing and Law at Yale Law School.