Freedom of Speech is a right that Americans have held dearly since our nation’s founding. Codified in the Bill of Rights, the First Amendment importantly guarantees American citizens a right to free speech and a free press. Often dubbed the fourth estate, the Press has provided Americans with an essential way to scrutinize government activities and hold our public officials accountable. John Stuart Mill, a famous free speech advocate, once said, “All silencing of discussion is an assumption of infallibility”. If our rights to speech are suppressed, our society risks stagnation because we cannot freely share our thoughts. Even though this is an extreme example, recent actions by prominent politicians have raised concerns that journalism is becoming a target.
With the election of Donald Trump in 2016, attacks on our press have become more vicious and relevant in recent years. Throughout his presidency, Trump used his platform to attack critical media outlets as “fake news” and “the enemy of the people”. This strong rhetoric has pushed some people to attack journalists they disagree with. A prime example of this can be seen with Cesar Sayoc. Sayoc crafted 16 pipe bombs and mailed them to CNN and prominent Democrats across the country. Although Sayoc’s actions have forced physical violence to the forefront, politicians have resorted to more subtle means to silence the press.
Since the founding of our country, public officials have been the subject of intense scrutiny over their actions. Unfortunately, running a negative story ran the risk of openly encouraging violence against journalists. Even as physical violence declined over the century, politicians had one trick they could use to clamp down on critical media: libel and slander lawsuits. Libel and slander both involve using speech to attack the reputation of a person or entity in a malicious and untruthful way. However, libel lawsuits deal with written statements while slander covers spoken speech. In the US, public officials used these lawsuits to great effect. If they won the lawsuit, politicians were able to levy massive fines against their opponents to silence them. Prominent examples of successful libel lawsuits came out of the South during the Civil Rights Era. Southern officials were able to silence scrutiny over segregation by filing libel lawsuits against journalists. According to Ozan Varol, a combined $388 million in damages was assessed to journalists by 1964. Fortunately, the abuse of libel lawsuits was cracked down upon that same year.
In 1964, Montgomery, Alabama Police Commissioner Lester Sullivan tried to sue the New York Times for libel when it ran a story about allegations of police brutality. Under a landmark ruling in New York Times Co. v. Sullivan (1964), the Supreme Court ruled that libel against a public official or prominent figure can only be proven if the press acted under “actual malice”. This represented a huge victory for democratic rights as the Sullivan ruling afforded more freedom to Americans to scrutinize public officials. Even more democratization occurred when the Court ruled in favor of releasing the “Pentagon Papers” in New York Times Co. v. United States (1971). However, these expanded rights have slowly eroded over the past several decades as libel lawsuits now pose a bigger threat to a free press.
How exactly does a libel lawsuit signal democratic backsliding? When used correctly, libel lawsuits are essential to ensuring that a person’s character is not harmed without consequence. Unfortunately, as Zarol argues, libel lawsuits form a core part of what he terms “stealth authoritarianism”. Stealth authoritarians use legal means to slowly shift society away from democracy. Under the guise of protecting the public from misinformation, would-be authoritarians often abuse libel lawsuits to crack down on dissent and silence their opponents. At face value, the public may support the premise of these cases; who wants to be deceived by fake news? However, citizens will not realize the full consequences of the authoritarian’s actions until it is too late.
The use of libel lawsuits to erode democratic norms isn’t exclusive to the US. Throughout the world, democracies have slid into authoritarianism in part because of libel lawsuits. Aziq Huq and Tom Ginsberg’s study of subtle democratic backsliding found that libel lawsuits are a key part of restricting speech. For example, Russian President Vladimir Putin successfully pushed through a harsh libel law that punished violators with up to 480 hours of hard labor if they “discredit[ed] the honor and dignity of another person”. Unsurprisingly, Putin’s regime has used this law to imprison journalists attempting to uncover corruption.
As mentioned earlier, the massive expansion of First Amendment rights seen in the 1960s and 70s has slowly devolved into a precarious situation. Former President Trump’s vocal attacks against the media have also been accompanied by legal action. Amidst the COVID-19 Pandemic and 2020 election campaign, Trump sued the New York Times for libel over an Op-Ed that raised concerns over his campaign’s coziness with Russia. In language eerily similar to the libel law passed in Russia, the lawsuit alleged that the New York Times “harbor[ed] ’extreme bias and animosity’ toward Trump”. Fortunately, a New York state judge dismissed the lawsuit a year later on the grounds that Op-Eds are constitutionally protected speech.
The New York Times isn’t the only news source that Trump has blasted. Trump’s strongest attacks have largely been directed towards CNN. In a letter of intent filed this year, Trump pressed CNN to remove dozens of articles that cast him in a negative light. Even though it is unlikely that this effort would succeed, it shows how Trump is trying to place greater scrutiny on the “actual malice” standard from Sullivan. The ultimate goal of Trump’s actions is to loosen libel laws to a degree that public officials can once again silence dissent with impunity. Although some might argue that these lawsuits cannot be interpreted as an effort to weaken libel laws, previous statements by Trump would say otherwise. In 2018, Trump ranted during a cabinet meeting about the state of libel laws. He believed that the current state of them was a “’sham and disgrace’” and wished it would be easier to sue journalists. This willingness to suppress free speech underscores what Zarol argued earlier about stealth authoritarianism.
Former President Trump isn’t the only official engaged in efforts to abuse libel laws. Sarah Palin, the former governor of Alaska, also filed a libel lawsuit of her own against the New York Times this year. In it, she alleges that the Times falsely accused her of promoting mass shootings through her campaign rhetoric. A judge eventually dismissed the case as he believed it did not reach the standard of “actual malice”. Palin’s case shows us that this phenomenon does not fall on the shoulders of one person; it represents a growing trend toward legal intimidation.
As seen through our history and recent events, abuse of libel laws is an issue we must keep an eye on. Our judiciary has been able to thwart these efforts so far. However, Americans must remain vigilant against these efforts and not fall for their faulty logic. Only then can we prevent a decline in our democracy.