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John Trump: Libel law revision would suppress free speech

John Trump

John Trump

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BY JOHN TRUMP

Tuesday, October 23, 2018

Politicians and newsmakers have lately developed a penchant for the words "libel," "slander," and "defamation." Oftentimes these words, salient and distinct, are used carelessly and ignorantly.

Writers and irresponsible journalists have in fact lurched off course — accidentally or deliberately — and sometimes after costly and lengthy legal proceedings the aggrieved party is justified in court.

But that's much more the exception than the rule, and it's all the more reason to refrain from using the aforementioned words in jest, or in anger.

For reckless use of these words digs at the ground from which this country was born. At the roots of the First Amendment, of free speech and a free press. Of rights not casual but critical to our culture, our republic, and our individual liberties.

The current libel laws are clear and strong, refined and established by our courts, maybe most notably in New York Times Co. v. Sullivan in 1964, when the U.S. Supreme Court established a standard for actual malice, requiring that public officials or public figures prove a statement is false or used recklessly and without investigating its veracity.

Calling a story "false" or "fake" or "made up" because it's perceived by a group or individual as negative or incomplete is irresponsible and sets a dangerous precedent.

Terminology may vary among states, but to prove libel, says The Associated Press Stylebook, a plaintiff must prove a defamatory statement was made; that the defamatory statement is a matter of fact, not opinion; that the defamatory statement is false; that the defamatory statement is about ("of and concerning") the plaintiff; and that the defamatory statement was published with the requisite degree of "fault."

The bar, as stated, is considerably higher for public officials.

Nadine Strossen is a professor of Constitutional Law at New York Law School and the first woman national president of the American Civil Liberties Union.

She's the author of the recently published "Hate: Why we Should Resist it with Free Speech, Not Censorship." Strossen spoke at Campbell Law School on Oct. 15.

She warned about efforts to restructure libel laws toward making it easier for public officials to sue and tougher for journalists to do their jobs.

"It would be very harmful," she told Carolina Journal. "Because, you look at anything that has a pragmatic impact on suppressing speech, which the Supreme Court recognized most famously in the New York Times v. Sullivan. … Even having to defend against libel lawsuits, let alone paying damages can have even more of a chilling effect than being criminally prosecuted."

Smaller news organizations don't have the resources to defend against such charges, regardless of how frivolous they may be. I would like to think public officials would stop being so cavalier in using words such as libel and slander until they understand their meaning and the laws encapsulating them.

That's not happening, so it's incumbent on all of us to delve deeper. Journalists and published writers are held to a legal standard, one that's strictly reinforced in newsrooms across the country. Sadly, too many people today reside in one polar region or another, far removed from logic and reason. Sadly, too many listen only to things they want to hear, coming only from the people they want saying them. Hyperbole and empty words prevail. Truth becomes a casualty.

John Trump is the managing editor of Carolina Journal.

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