Those of us who work in journalism understand that when we tell people that we’re worried about what the Trump administration is doing to press freedom -- and particularly about the threat of changes to libel law -- we might sound like just another interest group pleading for our own privileges. Here in Albany, where I’m speaking just now, we see a lot of that, after all.
And we understand that some folks might think we’re whining from a place of privilege. There are so many crises confronting us all in these chaotic early weeks of the second Trump administration that people might be forgiven if, say, they secretly wonder whether it much matters if reporters have to work harder to get their stories, or if powerful and rich media companies have to make some payouts for airing or publishing stuff? It’s not as though network executives or reporters are going to go hungry – unlike the million children who are losing treatment for severe acute malnutrition, or the 3 million children who will contract preventable diseases because they’re being denied immunizations, all because of the withdrawal of funding that the United States of America used to provide. They will all probably die. So, granted, barring some reporters from the White House won’t make any children go hungry; weakened libel laws won’t kill anyone.
But curtailing the protection of free speech in America – which is exactly what Donald Trump and many of his backers are pushing – ultimately will imperil every other freedom we have. Free speech, guaranteed by our First Amendment, is under assault. Here’s one reason this matters so much just now: Far more than ever before, we cannot trust the government to be telling us the truth these days. RFK Junior’s health agencies and Pete Hegseth’s Pentagon and the FBI under Kash Patel are not trustworthy sources of information, any more than the man in the Oval Office himself – and he lies as habitually as Winston Churchill sipped whisky.
So we need sober journalists to find the truth and tell it without having to use words the administration determines to be acceptable, and without facing the risk of expensive libel suits anytime they make somebody in power feel uncomfortable.
So about libel law, know this: It’s in no small part thanks to the Supreme Court that we’ve had solid legal footing for investigative journalism – for holding the powerful to account – for more than six decades. That’s because in the 1964 Times v. Sullivan case, the U.S. Supreme Court established a clear standard that essentially determines how hard it might be for a public official to challenge fair reporting. To succeed in a defamation case, a public official must prove, first, that a published statement was false and, second, that the publisher published that falsehood with “actual malice” — either knowing it was a falsehood or going ahead and publishing with “reckless disregard” for the truth.
The Sullivan case was arguably the most consequential free-speech decision in Supreme Court history. Because of it, it’s said that a journalist in America can be held accountable for a deliberate smear, but not for a mistake made in the course of good faith reporting. And if what is published is true, there is no way a lawsuit can go forward.
Except nowadays there’s this: Digital networks now give politicians huge benefit from fighting even a loser of a lawsuit. A bad-faith libel suit can still cost a news organization a huge amount of money before it is thrown out of court – legal bills that can be catastrophic for a small or mid-sized operations but not for well-funded politicians. And that’s just what is happening all over the country these days, as local politicos mimic Donald Trump in trying to avoid scrutiny.
And some big news organizations are increasingly willing to pay multimillion-dollar settlements to make libel cases go away because they don’t want to be on the wrong side of Trump’s power. ABC News gave $15 million toward Trump’s presidential library to settle a defamation lawsuit that most experts say ABC surely could have won – but at what cost? Was the reputation and the financial health of its owner, Disney, at risk, thanks to right-wing media and online networks?
Now, comes this: A bevy of right-wing lawyers and deep-pocketed plaintiffs are reportedly pushing toward a Supreme Court confrontation that they hope will result in a more restrictive libel law – thanks to the court’s right-wing majority backing away from the historic strong protections of the Sullivan standard. At least two justices, Clarence Thomas and Neil Gorsuch, clearly are ready to overturn Sullivan and make it easier for public figures to attack the free press and win. There may well be a majority of five justices willing to at least weaken the standard.
It matters that the press has strong protection to do watchdog reporting – even to make mistakes. It matters because Americans need an aggressive media able to tell them the truth. And it matters because that’s not what we can trust our government to do these days. The free speech guarantee in our Constitution protects not just the press, but all of us. If we ignore this threat, we all could become less well-informed – and, thus, less free.
Rex Smith, the co-host of The Media Project on WAMC, is the former editor of the Times Union of Albany and The Record in Troy. His weekly digital report, The Upstate American, is published by Substack.
The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.