We watch it all the time: a news story quotes “unnamed sources” that claim that the President “might” be a Russian agent. Never mind McCabe is a proven liar. Never mind he is personally under investigation awaiting certain prosecution for committing at least one felony, never mind he is alleging major wrong against a sitting president. Never mind that McCabe and his fired mentor James Comey used that “might be a Russian agent” as a basis to begin the FBI probe of Trump that morphed into the Mueller probe. All that matters is they “think” there “might be” evidence that proves that. Those allegations, or “suspicions” — not “evidence” — were used to get the FISA court to authorize electronic surveillance of the Trump Organization. Providing “fake” and unproven evidence in a FISA application is a felony!
Then there’s this: a Supreme Court nominee was accused by a woman of sexual assault at a party 30 years ago that caused her irreparable harm and psychological damage while proving the nominee unfit to serve. None of the witnesses she stated would testify on her behalf to prove those allegations would do so. No evidence….no witnesses….her testimony nearly destroyed the life of a now seated United States Supreme Court Justice.
Both of these are examples of exactly what Americans face daily in the instant 24/7 news environment in which we live. And the questions that arise from such stories seem to be unending: Who do we believe? Were the allegations true? If not all, which ones are true and which are false? And almost every time we face such questions, we must make a decision to believe or disbelieve all or portions of what we hear.
But if we cannot be certain about elements of these and other stories, how can we make good, logical and informed decisions? And such decisions are often monumental! Decisions of this magnitude can determine outcomes of national elections, who the President of the United States is, our Governors, Mayors, U.S. Senators, and Congressmen. We MUST get it right.
Unfortunately for Americans, we have no legal requirements that force absolute and accurate information from these national news sources, or from any one individual or group. The First Amendment “absolutely” protects all individuals, corporations, and groups from liabilities associated with disseminating incorrect information. And it seems that the legal protection mentioned here encompasses EVERYTHING and that there is NO requirement for the truth and NO penalty for untruth.
Wait a minute: there are libel laws, right? There certainly are. But, obviously, they are on the most part ineffective — so much so that most of such laws that have actual “teeth” in them are at the state level. And protection under the First Amendment gives illegitimate individuals and organizations a “free pass” for lying most of the time. One would think defamation could best be handled in a uniform and universal way at the federal level so that truthfulness would be a news and information requirement with stiff penalties for NOT being as portrayed. Alas, legal precedence regarding existing laws does NOT favor the truth.
So let’s get some legislation passed that puts teeth into forcing truthfulness from our media! Oops…the First Amendment. Stories like this one are out there aplenty:
“In the latest in a long line of attacks on freedom of the press, President Trump has once again threatened today to change libel laws to make it easier to sue news organizations, publishers, and others after the publication of an unflattering book. “We are going to take a strong look at our country’s libel laws so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts,” Trump said.
Fortunately, there are two strong obstacles standing in his way. Chief among them is the First Amendment, which clearly protects freedom of the press. But the other main barrier is the inconvenient fact that there is no federal libel law for President Trump to bully Congress to change. Libel cases are based on state laws, which neither the president nor Congress has control over because of our nation’s federalist system.”
We’ll give you some specific thoughts on all this. But first, let’s take a quick look at the “legal” history of defamation, how we got to where we are, and what defamation regarding truthfulness really is today.
History of Defamation Laws
The origins of the United States’ defamation laws pre-date the American Revolution; one influential case in 1734 involved John Peter Zenger and established a precedent that “The Truth” is an absolute defense against charges of libel. (Previous English defamation law had not provided this guarantee.) Though the First Amendment of the U.S. Constitution was designed to protect freedom of the press, for most of the history of the United States, the U.S. Supreme Court failed to use it to rule on libel cases. This left libel laws, based upon the traditional “Common Law” of defamation inherited from the English legal system, mixed across the states.
The 1964 case New York Times Co. v. Sullivan, however, radically changed the nature of libel law in the United States by establishing that public officials could win a suit for libel only when they could prove the media outlet in question knew either that the information was wholly and patently false or that it was published “with reckless disregard of whether it was false or not.” Later Supreme Court cases barred strict liability for libel and forbade libel claims for statements that are so ridiculous as to be patently false. Recent cases have added precedent on defamation law and the Internet.
The First Amendment guarantees of Freedom of Speech and Freedom of the Press provide defendants in the United States significantly more protection than the countries of the Commonwealth and Europe. Some variation exists among the several states to the extent the state’s legislature has passed statutes or its courts have handed down decisions affecting some elements inherited from the common law. Some states connect what constitutes slander and libel together into the same set of laws.
Criminal libel is rarely prosecuted but exists on the books in many states, and is constitutionally permitted in circumstances essentially identical to those where civil libel liability is constitutional. Defenses to libel that can result in dismissal before trial include the statement being one of opinion rather than fact or being “fair comment and criticism,” though neither of these is absolute on the US constitution. Truth is an absolute defense against defamation in the United States, meaning true statements cannot be defamatory.
Most states recognize that some categories of false statements are considered to be defamatory. People making a defamation claim for these statements do not need to prove that the statement was defamatory.
John Peter Zenger
In one of the most famous cases, New York City publisher John Peter Zenger was imprisoned for 8 months in 1734 for printing attacks on the governor of the colony. Zenger won his case and was acquitted by a jury in 1735 under the counsel of Andrew Hamilton. Governor Morris, a major contributor in the framing of the U.S. Constitution said, “The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America.” Zenger’s case also established that libel cases, though they were civil rather than criminal cases, could be heard by a jury, which would have the authority to rule on the allegations and to set the amount of monetary damages awarded.
The First Amendment of the U.S. Constitution was designed specifically to protect freedom of the press. However, for most of the history of the United States, the Supreme Court neglected to use it to rule on libel cases. This left libel laws, based upon the traditional common law of defamation inherited from the English legal system, mixed across the states.
People v. Croswell
The Zenger case did not, however, establish a precedent. In 1804 Harry Croswell lost a libel suit in People v. Croswell when the Supreme Court of New York refused to accept truth as a defense. The following year the New York State Legislature changed the law to allow truth as a defense against a libel charge, breaking with English precedent under which the truthfulness of the statements alone is not a defense. Other states and the federal government followed suit.
New York Times v. Sullivan
In 1964, however, the court issued an opinion in New York Times Co. v. Sullivan dramatically changing the nature of libel law in the United States. In that case, the court determined that public officials could win a suit for libel only if they could demonstrate “actual malice” on the part of reporters or publishers. In that case, “actual malice” was defined as “knowledge that the information was false” or that it was published “with reckless disregard of whether it was false or not.” This decision was later extended to cover “public figures,” although the standard is still considerably lower in the case of private individuals.
Defamation law in the United States is much less plaintiff-friendly than its counterparts in European and the Commonwealth countries, due to the enforcement of the First Amendment. One very important distinction today is that European and Commonwealth jurisdictions stick to a theory that every publication of defamation gives rise to a separate claim so that defamation on the Internet could be sued on in any country in which it was read, while American law only allows one claim for the primary publication.
In the United States, a thorough discussion of what is and is not libel or slander is difficult, because the definition differs between different states. Some states join what constitutes slander and libel together into the same set of laws. Some states have criminal libel laws on the books, though these are old laws which are very infrequently prosecuted. Washington State has held its criminal libel statute unconstitutional applying the state and federal constitutions to the question.
Most defendants in defamation lawsuits are newspapers or publishers, which are involved in about twice as many lawsuits as are television stations. Most plaintiffs are corporations, businesspeople, entertainers and other public figures, and people involved in criminal cases, usually defendants or convicts but sometimes victims as well. In no state can a defamation claim be successfully maintained if the allegedly defamed person is deceased.
Section 230 of the Communications Decency Act of 1996 generally protects from liability parties that create forums on the Internet in which defamation occurs from liability for statements published by third parties. This has the effect of stopping all liability for statements made by persons on the Internet whose identity cannot be determined.
All states except Arizona, Missouri, and Tennessee recognize that some categories of false statements are so innately harmful that they are considered to be defamatory per se. In the common law tradition, damages for such false statements are presumed and do not have to be proven.
Statements are defamatory per se where they falsely impute to the plaintiff one or more of the following things:
- Allegations or imputations “injurious to another in their trade, business, or profession”
- Allegations or imputations of “loathsome disease” (historically leprosy and sexually transmitted disease, now also including mental illness)
- Allegations or imputations of “unchastity” (usually only in unmarried people and sometimes only in women)
- Allegations or imputations of criminal activity (sometimes only crimes of moral turpitude)
On the federal level, there are no criminal defamation or insult laws in the United States. However, 23 states and 2 territories have criminal defamation/libel/slander laws on the books, along with 1 state (Iowa) establishing defamation/libel as a criminal offense through case law (without statutorily defined crime)
Those 23 states and territories are: Alabama, Florida, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, South Carolina, Texas, Utah, Virginia, Wisconsin, Puerto Rico, Virgin Islands.
The U.S. is one of the only countries on Earth where harm that results from untruths stated or printed carry no consequences for those who initiate those. Don’t get me wrong: protection under the First Amendment is of the utmost importance to us all. It was crafted because those in the British Commonwealth could not say anything about the government or governmental wrongdoing without paying a horrible price. But the unfettered ability to say or print pretty much anything about others with absolutely no accountability for those thing being truthful is devastating. And it’s pretty unrealistic.
We see the horrors from such every day. What’s that old saying, “You can’t put the genie back in the bottle,” or “you can’t take back what you said.” Those are both true.
But is it realistic to such things as the circus of the Brett Kavanaugh SCOTUS nomination and confirmation in which multiple people publicly defamed him with apparent lies? He could have missed the opportunity of a lifetime for which he and thousands of other Americans study for, practice for, and aspire to achieve: a seat on the United States Supreme Court. It is unimaginable to think that such action could legally occur simply because someone or some people — for the purposes of stopping another from such an achievement — could lie, fabricate false circumstances and make unsubstantiated claims against someone, and can do so with no recourse whatsoever for what they said and what their saying those things do to the person or persons they are attacking?
I doubt our forefathers had that in mind.
What can we do?
The states listed above have acted on the fact that the federal government has done virtually nothing to protect Americans in this regard. Unfortunately, those protections are not the same from state to state and on the federal level are unenforceable.
Why hasn’t Congress done something about it? Could it be they are afraid that any such federal legislation would be struck down at the Supreme Court? Are all the members of Congress so callous they don’t care? Or is it because they are afraid they (who most of are attorneys) are incapable of crafting legislation that would 1) protect innocent Americans from reprehensible talk, written or electronic allegations from those who don’t have the truth, or have the truth and will not give it, or simply make up defamatory stories to hurt others?
No doubt Freedom of Speech is guaranteed. But there is no prevention in the First Amendment of holding those who unjustly bear “false witness” against another American that is severely damaging in its untruth. Our extremely intelligent legislators could surely craft a law that would pass muster. Why haven’t they?
I think for political purposes, they like it open-ended just like it is. Politics have become so dirty, so nasty, and so divisive that maintaining the unfettered legal permission to go after one’s political opponents in any way felt necessary is something they want to protect. Shame on them for that!
It’s time to have the ability to protect our integrity from lies, misrepresentations, and innuendo. Let’s protect the truth and encourage its use in a public and open environment. While doing that, let’s send a message that we encourage all to tell the truth all the time. But when you don’t, there will be a price to pay.
The warning with this is: Know for certain that if you lie about someone, there WILL be a price to pay. If it’s true, feel free to tell it. If it’s not, know there’s a price to pay if you DO say it.