Taking President Trump literally and seriously: A brief history of libel in America.

1. Open up those laws
Taking Trump literally and seriously:
A brief history of libel in America

2. Threatening The Washington Post
“Now, libel suits are very hard and I may look
at that, frankly, if I get elected, because it’s very
unfair that somebody could write whatever they
want to write and get away with it. And I will be
bringing more libel suits — maybe against you
folks. I don’t want to threaten, but I find that
the press is unbelievably dishonest.”

3. On the campaign trail

4. As president

5. Seditious libel
• Criticism of the government

6. Seditious libel
• Criticism of the government
• The greater the truth, the greater the libel

7. Seditious libel
• Criticism of the government
• The greater the truth, the greater the libel
• Essentially dead in the United States since
1735

8. The trial of John Peter Zenger

9. The trial of John Peter Zenger
• His New-York Weekly
Journal criticized
Gov. William Cosby

10. The trial of John Peter Zenger
• His New-York Weekly
Journal criticized
Gov. William Cosby
• Lawyer Andrew
Hamilton argued that
statements were true

11. The trial of John Peter Zenger
• His New-York Weekly
Journal criticized
Gov. William Cosby
• Lawyer Andrew
Hamilton argued that
statements were true
• Zenger was acquitted
in an act of jury
nullification

12. John Adams

13. Sedition Act of 1798
• Punished speech that was “false, scandalous
and malicious” about government officials
other than the vice president

14. Sedition Act of 1798
• Punished speech that was “false, scandalous
and malicious” about government officials
other than the vice president
• More than 20 Republican (Jeffersonian)
newspaper editors were arrested and some
were imprisoned

15. Sedition Act of 1798
• Punished speech that was “false, scandalous
and malicious” about government officials
other than the vice president
• More than 20 Republican (Jeffersonian)
newspaper editors were arrested and some
were imprisoned
• Jefferson was elected president in 1800, and
the victims of Adams’ repression were
released

16. Woodrow Wilson

17. Espionage Act of 1918
• Not really a seditious libel statute, but rather
was aimed at stifling interference in the war
effort

18. Espionage Act of 1918
• Not really a seditious libel statute, but rather
was aimed at stifling interference in the war
effort
• Slowly paved the way for expanding freedom
of expression, led by Holmes and Brandeis

19. Espionage Act of 1918
• Not really a seditious libel statute, but rather
was aimed at stifling interference in the war
effort
• Slowly paved the way for expanding freedom
of expression, led by Holmes and Brandeis
• In the 1920s the 14th Amendment was for the
first time applied to the First Amendment

20. Defining libel in the modern era
• False

21. Defining libel in the modern era
• False
• Defamatory

22. Defining libel in the modern era
• False
• Defamatory
• Is that enough to ensure freedom of speech
and of the press? Or do we need something
else?

23. “Heed Their Rising Voices”

24. A constitutional dilemma
• The white power
structure in the South
was wielding libel law
as a weapon

25. A constitutional dilemma
• The white power
structure in the South
was wielding libel law
as a weapon
• Libel had traditionally
been left to the states

26. A constitutional dilemma
• The white power
structure in the South
was wielding libel law
as a weapon
• Libel had traditionally
been left to the states
• Was there a role for the
U.S. Supreme Court?

27. A constitutional dilemma
• The white power
structure in the South
was wielding libel law
as a weapon
• Libel had traditionally
been left to the states
• Was there a role for the
U.S. Supreme Court?

28. Times v. Sullivan (1964)
“[W]e consider this case against the background of
a profound national commitment to the principle
that debate on public issues should be uninhibited,
robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials.”
— Justice William Brennan

29. Times v. Sullivan (1964)
“[E]rroneous statement is inevitable in free
debate, and … it must be protected if the
freedoms of expression are to have the
‘breathing space’ that they ‘need … to survive.’”

30. A third test for libel is added
• Public officials must show that the offending
statement was published with actual malice
– Knowingly false; or
– Reckless disregard for the truth

31. A third test for libel is added
• Public officials must show that the offending
statement was published with actual malice
– Knowingly false; or
– Reckless disregard for the truth
• That standard was later extended to public
figures as well

32. A third test for libel is added
• Public officials must show that the offending
statement was published with actual malice
– Knowingly false; or
– Reckless disregard for the truth
• That standard was later extended to public
figures as well
• Following several years of confusion, the court
arrived at a negligence standard for private
figures

33. Discussion questions
• Is it fair to require public officials (and public
figures) to meet such a high standard in order
to fight against false and defamatory
statements?

34. Discussion questions
• Does the actual malice test encourage the
media to act irresponsibly in the knowledge
that they’ll be held harmless if recklessness
can’t be proved?

35. Discussion questions
• Is President Trump’s promise to weaken libel
protections a threat to the First Amendment?
Or is he expressing a common-sense view?

36. Anthony Lewis
• His books “Make No
Law” and “Freedom for
the Thought That We
Hate” trace the
evolution of how we
understand the First
Amendment