Pro­tect­ing all opinion is best fix for our li­bel laws

The Palm Beach Post - - OPINION: THE DEBATE STARTS HERE - By Devin Watkins Devin Watkins is an at­tor­ney with the Com­pet­i­tive En­ter­prise In­sti­tute. He wrote this for In­sid­eSources.com.

Pres­i­dent Don­ald

Trump has called this coun­try’s li­bel laws a sham and a dis­grace and said he wants to change li­bel laws to al­low li­a­bil­ity for pub­lish­ing “know­ingly false” state­ments. He has said we need to “open up” li­bel laws and al­low more lit­i­ga­tion against news­pa­pers in par­tic­u­lar. He’s got that half right in that changes may be needed in our na­tion’s li­bel laws. But those laws do not need to be opened up to greater li­a­bil­ity. In­stead, we need greater pro­tec­tion for opin­ions ex­pressed con­cern­ing mat­ters of fact.

The pres­i­dent doesn’t have di­rect in­flu­ence over li­bel laws be­cause those laws are set at the state level, but the change he wants isn’t needed, any­way. If a news or­ga­ni­za­tion know­ingly pub­lishes a false state­ment of fact, even about a public fig­ure, the pa­per can al­ready be sued for li­bel.

The prob­lem with li­bel law stems from the fact that con­sti­tu­tional pro­tec­tions fail to match the orig­i­nal un­der­stand­ing of the Founders that opinion is not li­bel. That is, a per­son ex­press­ing an opinion can­not be pun­ished by the law for ex­press­ing that opinion.

The Supreme Court has a mixed record in this re­gard. The court moved closer to the orig­i­nal un­der­stand­ing when it de­cided in Gertz v. Robert Welch (1974) that “there is no such thing as a false idea.” The court held that “how­ever per­ni­cious an opinion may seem, we de­pend for its cor­rec­tion not on the con­science of judges and ju­ries but on the com­pe­ti­tion of other ideas.”

But then this con­sti­tu­tional lim­i­ta­tion on li­bel’s ap­pli­ca­bil­ity to state­ments of opinion was pulled back by the court in Milkovich v. Lo­rain Jour­nal (1990), which held that the li­bel law limit did not in­clude opinion with a “prov­ably false fac­tual con­no­ta­tion.” This idea un­der­mines the oth­er­wise con­sis­tent un­der­stand­ing of the court that “if there is any fixed star in our con­sti­tu­tional con­stel­la­tion, it is that no of­fi­cial, high or petty, can pre­scribe what shall be ortho­dox in ... mat­ters of opinion.”

If a state­ment truly is a mat­ter of opinion, not a claim of pri­vately known facts, then the state­ment should not be con­sid­ered li­bel. Peo­ple must be able to dis­agree with a govern­ment of­fi­cial about a fac­tual con­clu­sion, such as Trump’s in­au­gu­ra­tion crowd size. But as long as a per­son claims no spe­cial knowl­edge about a fact (by, for in­stance, merely re­ly­ing on third-party news reports), the opinion should be pro­tected speech.

Much of the way the Founders’ un­der­stand­ing of the free­dom of speech in li­bel cases was formed in the wake of the 1734 trial of John Peter Zenger, a Ger­man-Amer­i­can printer and jour­nal­ist in New York. In this case, Zenger ac­cused the gover­nor

If a state­ment truly is a mat­ter of opinion, not a claim of pri­vately known facts, then the state­ment should not be con­sid­ered li­bel.

of de­stroy­ing land deeds, ar­bi­trar­ily re­plac­ing judges, and tak­ing away trial by jury. Many of th­ese ac­cu­sa­tions were pub­licly known facts, which Zenger sought to prove true, as well as his own in­ter­pre­ta­tion and con­clu­sions con­cern­ing th­ese facts.

Zenger’s lawyer,

An­drew Hamil­ton, suc­cess­fully ar­gued to the jury that truth was an ab­so­lute de­fense to li­bel. The Founders would have un­der­stood that this ap­plies to the truth about a per­son’s opin­ions and con­clu­sions as well.

That is not to say that news­pa­pers can pub­lish what­ever they want, of course. Even un­der cur­rent le­gal prece­dent, a news­pa­per could be held ac­count­able if, say, some­one is harmed as a re­sult of pub­lish­ing know­ingly false in­for­ma­tion from a se­cret source who claims per­sonal knowl­edge about a sit­u­a­tion.

Amer­i­cans should dis­re­gard Trump’s oc­ca­sional calls to ex­pand li­bel laws. Maybe the pres­i­dent thinks cer­tain state­ments he dis­likes are pur­pose­fully false but can’t be proved. That’s hardly a prob­lem with li­bel laws — it’s a prob­lem with his ev­i­dence.

The only fail­ure of the li­bel laws is the fail­ure to pro­tect clearly all opinion un­der the free­dom of speech.

Watkins

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