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tv   Libel Laws Media Discussion  CSPAN  November 8, 2019 5:41pm-6:45pm EST

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online at and listen live with the free c-span radio app. and now the heritage foundation hosts a discussion on libel laws. they discuss whether they should be re-examined and used to restrain the mead why. from last month, this is just over an hour. >> good afternoon. my name is david azarad and i'm from the simon center for politics and the fellow here thea the heritage foundation. it is my pleasure to welcome you to the heritage foundation for the panel discussion in our preserve the constitution series. the freedom of the press as all americans know, is enshrined in the first amendment. a free press is a necessary component of republican self-government and a hallmark of a free society. that is not in question. in fact, it's non-negotiable.
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free speech is the prerogative of the press. it protects the free speech writes of all american, not just those who so happen to have a name in journalism. the press, in other words, is itself subject to free speech just like everyone else is. journalist, however, do not take well to criticism and i say this as a recovering journalist myself. there is a tendency in the media to equate criticism of the press, however well founded with an attack on the freedom of the press itself, but i think you can be committed to free speech while attacking those who abuse it. what's more, the freedom of the press like all freedoms is not without limits. there are no prior restraints on publication. those days are thankfully, long behind us, but the press is responsible for what it says especially if it defames an individual. libel laws are also an integral
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part of a free society. in the 1964 landmark supreme court ruling of new york times b. sullivan, the supreme court considerably raised the burden of proof for public officials who were seeking damage for libel to the standard of actual malice. this standard has in effect, granted the press near-blanket immunity and thus, considerably expanded its powers. now justice clarence thomas has recently expressed interest in revisiting the standard that the court articulated in sullivan. he described that standard as, quote, almost impossible to satisfy. today, we take up the question implicitly raised by justice clarence thomas. do the present limits placed on the press serve the common good? and we have assembled, pardon me, a distinguished panel to discuss and debate the matter because at the heritage foundation we like to have
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debates on these difficult and contentious questions. speaking first will be my colleague arthur millic who will set up the framework through which we should think about the power of the press. arthur is the associate director of the beacon at simon center for principles and politics here at the heritage foundation and he conducts research on america's founding principles. he also gives talks on the tenets of the american political tradition, to the public at large and public officials here at washington and he has written a variety of outlets and he published on the freedom of the press and national affairs three years ago. it's excellent. arthur will be followed by libby lock, and libby is a highly accomplished defamation lawyer and commercial litigator who devotes her practice to representing clients who are facing high-profile reputational attacks. in the courtroom, libby was lead
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trial counsel for nicole aramo in the defamation act against "rolling stone" magazine in which he acquired a $3 million jury verdict for the false article about the alleged gang rape at the university of virginia. outside the courtroom some of libby's biggest defamation wins are stories the public will never hear about, she's killed articles and outlets including "the new york times," "the washington post," "vanity fair" and "the dr. oz show," last, but not least will be lila vine who will argue for the sullivan ruling. lee has represented media clients in various first amendment cases for more than 35 years. he has twice argued for media defendants before the supreme court, litigated in the courts of more than 20 states and the districts of columbia and appealed in more federal appeals
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courts. chambers usa called him, quote, the greatest first amendment attorney in the united states, and with that, please join me in welcoming our panel. [ applause ] >> and it's an honor to be here with my fellow panelists. we are friends of the free press because it's absolutely necessary to republican government. you cannot have political liberty without a free press, but contained in its principle is a corrosive side. the president's behavior over the past several years is driving people away from it and in creating great distrust it loses its salutary effects and the 2016 presidential election was a shocking moment in which many americans witnessed much of the press doing all in its power to select a president on behalf of the american people. these actions disclose a tacit opinion that the press has of
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itself, not merely the fourth estate and the creator of the would-be ruler and the master or the kingmaker. the news media often thinks that the freedom of the press refers to it alone and that the freedom is absolute for which reason they think they're beyond even criticism. this is part of the reason the press hates president trump so much. he questions their motives and accuracy. today there are fewer constrains on the press. this means that the press is restrained only by its conscience or sense of shame. the nation ends up relying on this sense of shame to prevent the spread of falsehoods or irresponsible reporting. this afternoon i'd like to limit myself to discussing the observation of two penetrating thinkers, who can help us understand the current circumstances. i don't do this for antikwushgs
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aran and antischolarly reasons and they have the good and the ill that come from the freedom of the press. to develop our analysis we should take a step back and look at the press's original purpose and the press is meant to attack d dogmas in press and politics. the freedom of the press does not refer to the news media alone and it refers to the publication of science and its circulation and this is arguably, the most successful element of the freedom of the press. so successful, in fact, that it's been forgotten. the second purpose and benefit is what we all already have in mind which is attacking dogmas and politics. the free press would defend liberties, like tyranny, monarchy and slavery. the popular press would have an essential role in preserving our role of government. it would compel the responsibility of government to serve the public faithfully by vigilantly guarding against corruption and abuses. and tocqueville goes even
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further. he says that newspapers not only guard freedom, but they maintain civilization. even the press doesn't speak so highly of itself. newspapers bring together local communities to help rule themselves politically. they simply cannot happen without newspaper, tocqueville says. as we already know, very much is at stake in having a good press. the press, as it was understood by the founders is motivated to act viciously, attacking false scientific knowledge, false political dogma and uncovering corruption for the sake of preserving republican government. this is good, but just like the press should compel government to be responsible, so, too, did some laws compel the press to be responsible itself. so that's the good. here's the bad. neither franklin nor tocqueville were naive about the possible bad effects of the press and in fact, predicted many of them. as tocqueville says, he loves
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the freedom of the press, i'm quoting him, out of consideration for the evils it prevents, much more than for the good it does. franklin agrees. and no american founder had more experience in the press founderd more experience in the press than him. he became a multimillionaire through the press and he spent his entire career in it. i want to lay up for you in broad terms franklin's critique. the press often attempts to imitate the dignity and the procedures of a court of law. it holds mock trials, passes judgment, sentences, holds mock executions, and condemns people to infamy. it does all this on its own discretion by picking and choosing its own causes and enemies. it does this mainly by, i am quoting him, receiving and promulgating accusations through which it can condemn anyone. they can condemn both public and private individuals and institutions. but while it
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imitates a court of law, unlike the court, it is not limited by jurisdiction. it has a roaming jurisdiction. nor is it restrained by any intelligible precedent like a court of law is. indeed, in its actions, it's sometimes, franklin says half-jokingly, it behaves like the spanish inquisition. no grand jury evaluates the truth of the press's accusations, nor is there a swearing of the truth by the accusers. instead anonymous unverified statements are sufficient to move public opinion. if they are proven false, these individuals go unpunished. nor is the accused's reputation ever fully restored. in conducting these mock trials, the press has the remarkable power over citizens's minds. franklin writes, the proceedings of the press are sometimes so rapid that an honest, good citizen may find himself suddenly and unexpectedly accused and in the same morning judged and
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condemned and sentence pronounced against him that he is a rogue and a villain. this is what happened to the covington kids and this is the ongoing mock trial of president trump. the press of course cannot burn you at the stake as the inquisition could, but it can intimidate you. in doing this, it can compel belief all while claiming to persuade your reason. franklin sees in this power the capacity to crush the voice of reasoning citizens making them browbeaten and partisan. the freedom of the press in an odd way can lead to the unfreedom of the mind. given these massive powers, franklin is interested in figuring out who composes this class of journalists. we should remember at the time this was a new human type emerging. he said in the past nations had restrictions on who could enter into the publishing world. in some places, individuals were chosen by an executive or a council on the basis of that person's virtues. so let's say their education, prudence, intellectual abilities. or in
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some cases the position was inherited and, therefore, tradition or honor would restrain them. but when the press is open to anyone, it will often attract a certain type, and here franklin cheekily observes, this type is the 1 in 500 who will have the privilege of accusing and abusing the other 499 parts at their pleasure. he feared this class may attract individuals animated by this desire. surely there will be those like franklin himself who care about the public good. but what he fears is this new attitude and its secret motive will unify a new class which will hold too much sway over society. yet despite these abuses, the press continues to have enormous power. that's because there's a natural support in it in us, and that is human resentment. the public's taste for destroying and humiliating others. accordingly, the press
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appeals, i'm quoting him, to those who desire despairing to rise into distinction by their virtues, or happy if others can be depressed to a level with themselves. the press loves exposing private vices for the satisfaction of the public appetite for such things. it flatters the public by saying, look at these people, they are greedy, ruthless, immoral. you can look down on them while pretending you're nothing like them. today, the press even says your president is merely insane and mentally unhinged. he is certainly not a very stable genius. thus, emerges a coterminous relationship of mutual dependence. on the one hand the press wants, to rule the public mind. on the other hand, the public allows this because of its desire to be flattered for its jealousies to be satisfied or while being grateful the press doesn't target them. and here is where de tocqueville picks up the
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thread. he's astonished that while america is so free, so stable, so prosperous, unlike his home country of france, he says america's press has the same destructive taste as in france and the same violence, without the same causes for anger. allow me to read you a short passage from a local newspaper which de tocqueville quotes in democracy in america which i suspect he invented. but it's exemplary. he says this is from a local newspaper. in all this affair, the language help to my president jackson has been that of a heartless despot, occupied solely with preserving his power. ambition is his crime and he will find his penalty in it. his intrigue for a vocation and intrigue will confound his design and rests his power from the party picky governs by corruption and his guilty maneuvers will turn to his confusion and shane. the hour
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of justice approaches. soon he will have to give back what he is one to repent is not a virtue fits ever been given to his heart to know. this could've been written yesterday. (laughs) >> but we should pay very special close attention when de tocqueville gives examples like this, especially when he invents them. what this little quote says is that president jackson stands too tall, vis-a-vis the press. he must repent as they are the only confessor. in demanding this, the press pretends to rule for the sake of the people but it actually agitates them ceaselessly and is willing to " altar and denature the facts for the sake of its own significance. " what moderated this power, at least in tocqueville's time, was a
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america was a decentralized nation. in the america of de tocqueville's time, he says there are more local associations and newspapers than anywhere on earth. that's because the more free people administers its own affairs look like the more newspapers necessary for them to communicate with one another to govern themselves. de tocqueville's america was fragmented which is to say it's not go back centralized authority. when people are still free, to talk about the press could cure what he calls individualism through newspapers. this is not the rugged individualism we often extoll. rather, he moved the increasing isolation and weakness of citizens such that they ruled almost solely by public opinion and eventually a vast state. his lesson is this, the more numerous are the newspapers, the healthier the society. but de tocqueville warns the more centralized the nation, the fewer the newspapers. in fact, the decentralization of newspapers prevents the unity of the press from unifying as a class unto itself and ruling the nation. but looking at france in his time, he fears that there can even develop unity between the press as a whole and the
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political party. as he says of france, under these conditions, the power of the press will be quote, almost without bounds. it can compel government into truces and perhaps even topple them. it's not outlandish to imagine even in america that the major press organs can at some point come to a tacit agreement to unify among themselves as they nearly did in the run-up to the 2016 election. but thank goodness for the internet. a few words to conclude. for de tocqueville, moderating the abuses of the press means more newspapers or in our time the internet. regrettably, there is now a movement to shut down the freedom of speech on the internet which contains many news outlets that counterbalance the power of a united press. returning to franklin, he has two solutions. he thinks the public should be wary of the press'desire to rule it. and he thinks one way to moderate this is through criticism and satire of the
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press. you see this today. we have so many movies exposing military, the church, whatever other institution as corrupt. there's never been a movie about the press. they are always heroes. saving the republic. finally, franklin thinks the laws like we have in the states today, i presume, would protect both citizens and public officials. but he doesn't specify what kind of libel laws. >> and so with that, i turn to my fellow panelists. >> (applause) >> i want to thank heritage for inviting me to speak today. it's a real honor to be invited to speak in such a distinguished panel, especially to arthur and david, to john malcolm. so i'm here today to argue against the "new york times" versus sullivan standard. but let me start by saying this. i'm not someone
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who dislikes free-speech. to the contrary, the first amendment is to be celebrated. it's what separates our great nation from most of the countries on the planet. it's what prevents us from being locked up and thrown into jail when we say things that are government officials don't like. and it is what allows us to assemble here today to have this very debate about the contours of that right. but while the first amendment guarantees a free press, which is a good thing, it does not guarantee a consequence-free press, which is a bad thing. what the supreme court ultimately sanctioned, a press effectively immune from civil defamation liability, what it did when handed down the decision in new york times v. sullivan. so we've heard about
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this case, the sullivan case. what did the supreme court say in it? it said, to prevail in a civil case for libel, defamation, slander, a public official must show that the speaker acted with actual malice. those are key words, actual malice. and what actual malice means is that the defendant speaker knew what he was writing or saying was false or recklessly disregarded the truth or falsity of the statement. what that reckless standard has been interpreted to mean is the speaker had high degree of probability and knew with a high degree of operability that what he was writing from of what he was saying was false. this is a subjective standard. this is what was in the mind of the speaker at the time he spoke. not what a reasonable person would know or reasonable person would understand based on available facts at the time. lower courts have said about this actual malice standard can
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we heard about what justice thomas said, almost impossible. other courts have characterized it as a heavy, often insurmountable burden, difficult task that extracts high price from the victims of defamatory falsehood, many deserving plaintiffs including some intentionally subjected injury will be unable to surmount the barrier of the new york times test. so where did the supreme court come up with this standard? it wasn't the first amendment. there's simply nothing in the first amendment history, text or structure, that warrants the imposition of the sullivan actual malice standard. the constitutional basis for the sullivan decision is extremely suspect. arthur has spoken so eloquently today about how the history of some of our founders and their thinking does not support the standard so i am not going to
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spend a lot of time on it. but let me spend a couple of minutes on the tactical structure of the constitution. the text of the first amendment says nothing about what standards must be applied in a civil defamation, civil libel case. it merely says that congress shall make no law abridging the freedom of the press. it doesn't talk about civil standards or what juries are supposed to find at all. what about the structure? is there anything in the structure of our constitution or in the bill of rights that suggests the actual malice standard is appropriate? no. there are other rights and freedoms that are recognized in our constitution. there is the freedom of religion, the right to keep and bear arms, the right to counsel in certain
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circumstances. but nobody is arguing and it would be silly to argue that the clergy or that gun owners or that lawyers could not be held civilly liable for the wrongful action absent a showing malicious content or recklessness. because these rights, the right to religion, the right to keep and bear arms, are so fundamental to our society and to our constitutional order. no one is making the arguments like they are with respect to the press. so on the question of the constitutional soundness of the new york times vs. sullivan decision, justice thomas's recent occurrence in the cosby case was spot on. sullivan was a policy-based decision untethered to the text structure or history of the first amendment. the nine unelected justices in the warren court basically made up the actual malice standard imposing their own policy preferences about what the law should be in civil defamation cases. they substituted their
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own policy preferences for 200 plus years of state defamation common law. but we come to the law as we find it. new york times v. sullivan is the law of the land. it was, in fact, a policy-based decision. so today, we are here discussing as a policy matter whether the actual malice standard is sound and whether it is sound public policy. it's not. now, what gives me the right to sit up here and talk about this standard and what is good policy and why it is good policy or not? i'm a practicing defamation lawyer. i'm a litigator who focuses on defamation cases. day in and day out, i represent my clients who are being targeted by the media and i see firsthand how reporters do and often don't do their jobs. from gathering or not gathering facts to cultivating or sometimes fabricating sources, to making
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decisions about which sources to grant anonymity to and which targets they will publicly identify. these are the decisions that i see how the media grapple with on a daily basis. for me and especially for my clients, the debate about sullivan is decidedly not theoretical. what is splashed across the pages of the "washington post" and the "new york times" has a profound impact on reputation. it can and has destroyed lives. it can and has destroyed careers, and it can and has destroyed families. this policy question has a profound impact on the right to one's reputation and the way that we protect it. so getting back to the actual malice standard, how does it operate? my nine-year-old daughter would say, how does it work in real life, mom? so the supreme court and lower court to have interpreted actual malice rarely say what actual malice is or what conduct constitutes actual malice. instead, the courts speak about
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what conduct does not constitute actual malice. so let's start there. a journalist's total failure to investigate before publishing a negative allegation, not actual malice. the fact that a journalist was biased or even motivated by a desire to cause harm or has an economic or political motive, not actual malice. a failure to reach out to the story's subject before publication to give him or her a chance to deny or comment on the story before publication, not actual malice. a failure to follow basic journalistic standards or ethics, not actual malice. the use of knowingly biased sources or anonymous sources, not actual malice. ok. that sounds kind of crazy. let's talk about then who this standard applies to. and given
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the courts have talked about how heavy a burden this is and an virtually insurmountable standard applies to, surely this must be a very narrow set of standards the actual malice standard applies to. new york times v. sullivan says it applies to public officials. ok. that makes sense, right? president trump, brett kavanaugh, they had their own access to media. they can call a press conference and rebut those negative allegations, right? i submit that those high-profile public officials are in a very, very rare defamation case. the supreme court has not done a good job defining who qualifies as a public official. that definition has been expanded beyond recognition. here's some of the other government employees that the lower courts have said are public officials. a taxicab inspector for
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charlotte, north carolina, public official. a county engineer for allen county, ohio, public official. a social worker employed by the alameda county social security agency, public official. a municipal building inspector for a small city in connecticut, public official. the sheer number of citizens who work for our federal, state and local governments is enormous. now, it is not just public officials that actual malice standard applies to. it's also public figures in this category that the court created called limited purpose public figures. this limited purpose public big your public figure category is comprised of the people who have thrust themselves into a public controversy, and thus made themselves public figures. this is a category that's most ripe for abuse. judges strained
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to find people who have somehow enmeshed themselves in the controversy and judges define these controversies incredibly broadly. here are a few examples of people who have been defined as limited purpose public figures. the owner of an apartment building was considered a limited purpose public figure because by owning an apartment building, he thrust himself into the public controversy concerning the rental housing arena. a professional belly dancer with was a limited purpose public figure because she welcomed publicity regarding her performances. a female navy pilot, i love this one, a female navy pilot was a limited purpose public figure with respect to the controversy about women in combat because she chose to be both a woman and a navy pilot. and this one that is near and dear to my heart, an associate dean at the
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university of virginia who has no policymaking authority was a limited purpose public figure because she gave a single interview to a student journalism class as part of a student project. now, this case law on what constitutes a what does not constitute actual malice and who must satisfy the actual malice standard has real consequences. the result, most people in this country are going to be considered a limited purpose public figure or a public official in and 99% of libel cases will fail to satisfy the actual malice standard. under existing law today, a huge swath of our citizenry has no remedy whatsoever if they are defamed, regardless of how catastrophic the defamation is or how much it hurts the reputation. this is near blanket immunity for the press. let's be clear.
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media defense lawyers like my friend lee rely on it daily in counseling their clients. my good friend kate bolger, to quote her, who's a lovely, lovely person and very talented and respected media defense lawyer, was recently quoted as saying that she relies on the sullivan standard quote, every day of her life as a first amendment litigator and how she advises her clients. it's not just in litigation that media defense lawyers rely on the actual malice standards. it's how they advise their clients on prepublication conduct and review before these allegations, before stories are published. for the media, after having been told so long that basically anything goes, it is no surprise that standards have seriously eroded and basically anything goes. so what does the
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world look like where sullivan is overturned? is it doomsday for the press? would it be the end of our democratic republic because the press would be out of business? and politicians and the powerful would no longer be held accountable. no. hardly. let me give you two reasons why. first, the media is largely owned by large for-profit companies, many of whom are publicly traded, who are rational actors who act in the ir own economic self interest. they are accountable to their shareholders. and another dirty little secret, they are protected insurance from libel claims, including legal defense costs. and being held accountable to an insurer or your shareholders after being tagged with a verdict will make you stop and think before you write. it will make you stop and actually do the
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investigation before you write. and it will impose discipline on journalists and the press. the second reason. returning to a pre-sullivan era means the press is held accountable for negligent conduct. that's the standard. negligent conduct that applied before sullivan was handed down. this is the same standard that any other professional class is held to, doctors, lawyers, accountants, pilots. if a doctor is negligent in how he performs a surgery, that patient can and should sue and receive damages for injury that doctor caused. now, negligence is not a nothing standard. it simply means you are held accountable if you fail to take reasonable care or if you created an unreasonable risk. so in practice going back to the negligence standard, journalists would have a duty
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to investigate before publishing. they would have to follow professional standards and adhere to a code of ethics. they would have to reach out to their target for comments before publishing. they wouldn't be permitted to blindly rely on what others have said and just repeating those claims in the press. they would make more limited use of anonymous or biased sourcing. and at minimum, they would disclose those biases in the ir reporting. they went would have to make an affirmative decision of whether the rush to be first is more important than actually getting it right. aren't these good things? there's one recent example where i think that rolling back the sullivan standard would have made a difference. just last month, the new york times breathlessly reported that there were new sexual misconduct allegations that have emerged about brett
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kavanaugh's time at yale. yet, in the times's initial reporting, and i am only picking on the new york times because lee represents the new york times, in the initial reporting, the paper completely omitted the fact that the women woman who was supposedly the victim doesn't even remember the incident and that she declined to be interviewed on this reporting for this topic. that was a serious lapse of journalistic standards to omit these important facts that would have given readers a more fulsome perspective on the allegations themselves. and pre-sullivan rollback, i suspect they would not have been omitted. should the press be restrained? yikes. what a loaded question, it harkens
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back to images of reporters in handcuffs. let me be clear, i'm not in favor of imposing criminal liability for defamation. i'm going to write that down. >> (laughs) >> that's off the record. should the press be restrained also raises another important question, restrained by whom? so i don't really love the way that question is framed but let me answer it this way. >> we wanted a big turnout in our defense. (laughs) >> i do believe press accountability is incredibly important. a free responsible press is vital to our democratic republic. it's vital to informed electorate. a responsible press is one that is self-restrained. rational actors behave in a way to avoid negative consequences, both social and economic. the press
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has run amok due in no small part to the fact that there are zero consequences for misconduct. trust and confidence in the press is at an all-time low. the specter of real civil liability with real economic damages, if those lawyers like lee and my friend kate in the confines of their attorney-client privileged conversations with their clients told their clients to slow down, take more time, there's real economic risk here, that would be a good thing for everyone. it's good for the media because it creates more accurate coverage which in turn creates greater trust and faith in the press by the people. it becomes much harder to dismiss the media with a hashtag like fake news. overturning sullivan creates a more self-restrained press, a more responsible press, and yes, a free press, not the
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consequence-free press that the supreme court has left us with in the wake of new york times v. sullivan. thank you. (applause) >> good afternoon. i speak to you today operating under a number of disadvantages. first, i suspect many of you have already made up your minds on the question we are debating and i'm facing an uphill battle to convince you it should not any further than it already is. second, although i speak last today, my remarks were drafted before i was made privy to what they were going to say. as a result, while i will offer my general perspectives on the issue, please forgive me if i do not respond directly to one or another of their arguments. in the limited time i have, i would like to emphasize three points. one about history, one
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about reality, and one about constitutional law. i would like to do so largely by invoking the words and insights of others with which i happen to agree. first, history. arthur has, as i suspected he would, said a great deal about history invoking the words of franklin to the effect that the press of his time was irresponsible and ought to be restrained by libel laws. i don't deny such writings exist i don't deny such -- ought to be restrained when it is critical of him, just as i'm unaware of a a politician who doesn't shaping the freedom of the press to criticize her opponents. to the extent history matters, and i will shortly say a few words about the extent to which it should, i commend to you the following rendition of what i submit is a history most relevant to the question for us. that is, the lesson to be drawn from the great controversy over the
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sedition act of 1798 which first crystallized the national awareness of the sentiment of the first amendment. that statute made it a crime punishable by a $5000 fine and five years in prison, and i quote, if any person shall write print or under a publishing false, scandalous, malicious writing a writings against the government of the united states or either house of the congress or the president with intent to defame or to bring them or either of them into contempt or disrepute. the act was vigorously condemned as unconstitutional and an attack joint in jefferson and madison. their premise was the constitution created a form of government under which the people, not the government, has the absolute sovereignty. in a debate in the house of representatives madison said if we advert to the nature of republican government, we shall find the powers in the people of the government and not in the government over the people. of the exercise of that power
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by the press, he said, in every state, probably in the union the press is exerted a freedom in canvassing the merits and measures of public men of every description which has not been confined to the strict limits of the common law. on this footing the freedom of the press has stood, and on this foundation it yet stands. although this addition act was never tested in the supreme court, the attack on his validity carried the day. fines levied in prosecution were repaid by acts of cards on the ground it was unconstitutional. calhoun reporting to the senate with fourth, 1836, assumed its invalidity was a matter at a quote which no one now doubts. jefferson as president pardon those have been convicted and sentenced under the act and remitted device. stating i discharge any person under punishment or prosecution under the sedition law because i consider and now consider the
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law to be unloaded as absolute and powerful as if congress had ordered us to fall the and worship a golden image. these views reflect a broad consensus that the act, because of the restraint imposed upon criticism of government and public officials, was inconsistent of the first amendment and there is no force in the argument that the constitutional limits in implicit in history of the sedition act apply only to congress and not to the states. it is true that the first amendment was originally addressed only to action by the federal government and that jefferson for one while denying the power of congress to control the freedom of the press recognized such a power in the states. but this distinction was limited with adoption of the 14th amendment and application to the states of the first amendment restrictions. those words as many of you and if you have probably recognized, were written at justice william j brennan junior for unanimous supreme court in new york times v. sullivan. they remain in my judgment and accurate the some
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of the relevant constitutional history today as it did when he wrote them more than 50 years ago. next i'd like to say word about reality. libby has as i suspected she would know to mitigate against each other for a very long time, painted for you a picture of an irresponsible and all-powerful press. see, i knew it she was going to say. i respectfully dissent from that view. from my perspective we live as we often do in perilous times. times in which the importance of a free press is as apparent as was once madison drafted drafted the first back in the sedition act. allow me to endorse the perspective of another contemporary observer. let me start by stating the obvious, the media are not perfect. it makes mistakes. it has blind spots to it sometimes drives people crazy. but the free press is foundational to a healthy democracy and arguably
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the most important tool we have as citizens. it empowers the public by providing the information we need to elect leaders and the continuing oversight to keep them honest. it bears witness to our moments of tragedy and triumph, and provides the shared baseline of common facts and information that bind communities together. president trump has tweeted about fake news nearly 600 times. his most frequent targets are independent news organizations with a deep commitment for reporting fairly and accurately. to be absolutely clear, news organizations are fair game for criticism. journalism is a human enterprise and journalists make mistakes. but at least in my experience that journalists and news organizations i've been privileged to represent also try to own their mistakes, to correct them and to rededicate themselves to the highest standards of journalism. but
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when the president decries fake news, he's not interested in actual mistakes. he's trying to legitimize delegitimize real news, dismissing factual and fair reporting as politically motivated fabrications. so when the "new york times" reveals his sales financial practices, when the "wall street journal" reveals money paid to a porn star come when what you post reveals his personal foundation dealing, he can cite that the county by sidestep accountability, dismissing the reports as fake news. even though all of those stories and countless more that he is labeled falls have been confirmed as accurate, there is evidence that his attacks are achieving their intended effect. those are the words of the publisher of the new times, words with which i wholeheartedly agree. i'd like to focus briefly on one of those intended effects, and that is the response of the president's campaign to open up the libel laws, which is the foregoing to be honest with each other, what brings us here today. i've been 40 years, and from i sit, litigating libel cases for
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public officials and other powerful public figures are now instituting libel actions against the press in an unprecedented and equally troubling rate. the passenger of those cases have been brought not to secure a compensation for actual injury to reputation but rather to punish the press for "speaking truth to power" and to dissuade it from doing so in the future. less than pay the price of birds and enormous expense of litigation, regardless of the merits. many of these cases are funded not by the allegedly aggrieved plaintiff but by wealthy individuals and institutions with ideological or political access to grind and scores to settle. that at least is the contemporary reality that i see and it ought to concern all of us. which brings me to my last point and that is constitutional law. at the end of the day what we're debating is what the first amendment did in the constitution means and answer to that question, unless you're prepared to overrule marbury v. madison is a job of judges
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including ultimately the justices of the supreme court. allow me one last time to invoke the words of another this time i distinguished federal judge who has spoken to the issue specifically in the context of the law of defamation. we face today a freshening stream of libel actions which often seem as much decide to punish writers and publications as to recover damages for real injuries. actions that may threaten the public and constitutional interest in free and frequently rough discussion. those who step into areas of public dispute which use the pleasure and distractions of controversy must be willing to bear criticism, disparagement and even wounding assessments. perhaps it would be better if it were conducted in measured phrases and calibrate assessments and with strict avoidance of the ad hominem. better that is if the opinion editorial pages of the public press are modeled on the federalist papers. but that is not the world in which we live, ever have lived, or are ever
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likely to know. and the law of the first amendment must not try to make public dispute safe and comfortable for all the participants. that would only stifle the debate. the american press is extraordinarily free and vigorous, as a should be. it should be not because it is free of inaccuracy, oversimplification and bias but because the alternative to that freedom is worse than those failings. judges given stewardship of the constitutional provision such as the first amendment whose core is no budget how to reach and contours are ill-defined face the never ending task of discerning the meaning of the provision from one case to the next. that would be little need for judges and certainly the office for judging if the boundaries of every constitutional provision were self-evident. they are not. it is a a task of the judge in this generation to discern how the framers values defined in the context of the world they
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knew apply to the world we know. so it is with defamation. we know very little of the precise intentions of the framers and ratifiers of the speech and press laws of the first amendment, but we do know they get onto our keeping the value of preserving free expression, and in particular the preservation of political expression which is commonly considered to be the value at the core of those clauses. perhaps the framers did not envision libel action as as a major threat to that freedom. i regret that for the sake of the point to be made, but if overtime the libel action becomes a threat to the central meaning of the first amendment, why should that judges adapt their doctrines? why is it different to remind next to become to refine and involve doctrine here so long as when it is faithful to the basic meaning of the amendment than it is to adapt the fourth amendment to take account of electronic surveillance, the
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commerce clause to address interstate motor carriage? i do not believe there is a difference. we must never hesitate to apply all dollars to new circumstances, whether those circumstances are changes in technology or changes in the impact of traditional common-law actions. sullivan was an instance of the supreme court doing precisely this, as brown v. the board of education was more generally an example of the court upon an old principle according to a new understanding of a social situation. the important thing, the ultimate consideration is the constitutional freedom that is given into our keeping. a judge refuses to see new threads to an established constitutional value and hence provides an interpretation that robs the provision of its full,
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fair and reasonable meaning failed in his judicial duty. that duty >> i repeat is to ensure that the powers and freedoms specified are made effective in today's circumstances. the evolution of doctrine to accomplish that contravenes no principle of judicial restraint. we now face similar to that which courts have met in the past few years a remarkable upsurge in libel actions attempted by inflation of damage awards has threatened to impose self-censorship on the press which can effectively inhibit debate and criticism as would over government migration that the first amendment will certainly would not permit. the only solution to the problem libel actions pose would appear to be close judicial scrutiny to ensure that cases about types of speech and writing are essential to a vigorous first amendment do not reach the jury. those of the words of the late judge robert bork come himself no stranger to wounding press scrutiny. they are as true today as when he wrote the more than 25 years ago. i commend them to you. thank you.
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before we opened it up for questions from the audience, would any of the participants care to respond to any of the other participants? i would like to ask tragic if he could introduce me to some of those litigations? i don't know them personally. lee makes a point there's this vast expansion of libel cases out there that are being funded by nefarious dark money, and i'm not aware of them and i would just like to be introduced to them. this gentleman from the front. please keep your questions bried so we can get to as many of them. please wait for the mic. yes. thanks. having heard lee describe and upsurge in
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this activity against the press and for example, libel claims, it sounds like even without a change in the law from a legislature or the supreme court, consequences are being introduced to the press, and thus the state of play here is moving in a good direction. perhaps even maybe embedded by favorable decision where judges did not overextend the definition of limited public figure. do you think that's true? is this moving naturally in a good direction or are things getting worse, so to speak, with respect to the alleged problem of the consequence free press? >> i think things are moving in that direction, and because of that i think they are getting worse. my problem with sullivan, which
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is kind of the mirror image of liberties problem with sullivan is that i don't think it provides enough protection because it operates at the wrong end of the litigation process. it's a subjective inquiry that often calls for very extensive and time-consuming and expensive discovery and then a trial, which even if the press wins it's already been penalized for the expression by the burdens of expensive litigation. i think this phenomenon is terribly troubling, and is already having an inhibiting effect on the press. but libby disagrees and she'll tell you why. i d use it disagree and i think one of the positive consequences of overturning sullivan, if that were to be
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done, is that it would open up more access to the court system and here's the reason being libel cases are would open up more access to the notoriously difficult to win. if you'd ask lee how many cases he sees defamation cases actually get beyond a motion to dismiss, that very initial filing for cases thrown out under rule 12 of the federal rules, very few. very few cases actually get into discovery, those that do are often throughout on summary judgment. opening up access to the court by overturning sullivan, how you get there is that if cases are notoriously hard to win and there aren't a lot of lawyers who are willing to take them on, especially on a contingency fee basis. they don't lend themselves easily to figuring out on the front end what damage awards likely to be one of the risk taking on the case is worthwhile. and so by overturning sullivan i think the pendulum has not swung far
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enough in this respect. >> i see your point about the immunity of the press, but tell me, if it is so that defamation cases really rarely proceed, how is it that the national review has been dragged through legal help for years by a would be a public figure, michael mann? >> it is a good question. i'm not the intimately familiar with this. i have litigated
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against the new york times and i know these major media outlets get lawsuits filed against them, but there are procedural protections at early stages that allow a court to throw out meritless meritless cases and there are policies that are in play to help fund media companies in their litigation defense costs and if an award is actually ever achieved in litigation. the notion that the press is going to be completely inundated in an economic way, i just don't
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see that and you compare it to the real damage that defamation causes the families, the livelihood. everyone really loves the free press when the camera is not pointed at them. it's easy to be a huge supporter of press freedom when you actually have and have that happen to you. >> let me i'm wondering whether you have yet to address the problems that you know >> i'm whether it is necessary to overturn sullivan or have a standard that includes gross negligence or recklessness or failure to follow a standard of care into other professional court claims as well as making sure the public figures are actually public figures. all those elements in sullivan may
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be it is just that if the supreme court were to take this up and you would say we need these things in here is what they mean rather than the whole structure being improper. that's a great question. i go back to my remarks in my talk. as a constitutional matter i don't think there is a constitutional basis for the sullivan decision as it was laid out. a big policy matter, therefore we end up in what is necessarily a policy debate. let's be clear about what this is. this is a policy debate over whether the standards are good or bad so if you want more judges doing more policy, yes, you can hold back on certain threads. they can define who a public figure is more narrowly. they can pull back on the limited purpose public figure definition much more substantially so you can certainly do that but it's be clear, that would be judicial
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policymaking, not judges following constitutional law. you get the last question because we need to adjourn. i have a question for lee. two-part question, this is a policy debate. if it were up to you do you think it's a good to eliminate libel laws altogether in the united states number one and 2, you think every would-be defamation plaintiff should have to show the actual malice standard the publisher disregarded the falsity of the statement? very good questions. no i don't think we should do away with libel law entirely and this gives me a not terribly sketchbook to respond to something libby just said. in one sense this is a policy argument and in one sense it's not. there are remarks i quoted from judge bork. we all know the first amendment protects speech. we have to define what speech is and early on the
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court said speech doesn't include libel so that's why we can ask libel laws though it becomes what is libel? and what the supreme court has done in sullivan and in the cases that came after it is what judges do, they make a reason constitutional determination about what for constitutional purposes these terms should be defined as and when they're talking about public figures, justice brennan ultimately said and he used these words, what he thought the malice standard was was distinguishing the calculated falsehood, the intentional lie on the one hand which has no business being protected by the first amendment even against public officials and speech that the press did not have an awareness was probably false for anybody, not just the press did not have an awareness was false when they published it which should
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be protected against public officials. i agree with that and that's my answer to the first question and the second question is again, the courts have drawn a line between public figures and public officials on the one hand and everybody else on the other hand. i think reasonable people can differ about where that line needs to be drawn that's what judges are there for, to draw it, and the supreme court has decided that on one side of the line of private figure only has to prove negligence. i agree with that. libby said early in her remarks. is that before sullivan was there was negligence. before bible there is not -- the supreme court when a fair measure and saying even public figures, private figures have to prove some
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malice was there. i'm comfortable with that. >> i'm very sorry to cut it short but we have to adjourn. please join me and thanking the panel. >> (applause) >> come the white the front now state department officials testify on middle east policy


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