Rhetoric aside, libel and media law haven't changed that much

Published Aug. 2018

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

In an initiative fostered by the Boston Globe, newspapers and other news organizations are publishing editorials this week—primarily this Thursday, Aug. 16—denouncing President Trump’s frequent attacks on the news media, including his assertion that the media are “the enemy of the people.”

Trump first tweeted this claim on Feb. 17, 2017, when he tweeted, “The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!” More recently, he has placed a limitation on this label, tweeting earlier this month, “They asked my daughter Ivanka whether or not the media is the enemy of the people. She correctly said no. It is the FAKE NEWS, which is a large percentage of the media, that is the enemy of the people!”

Every president since George Washington has had differences with the press, and many presidents have criticized media coverage of their administrations. But it is extraordinary for a president to disparage the press in ways that Trump has done, from his tweets to his haranguing of the media at his rallies and events.

The “enemy of the people” claim is just one of President Trump’s lines of attacks on the media. He has also criticized and vowed to change the legal standards for defamation, which he said make it too difficult to successfully sue the media. Last October, he tweeted that, “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked.”

As I’ve written before, these statements show fundamental misunderstandings about current law. The standard for defamation that Trump appeared to propose is actually the one already in place.  Broadcast licenses are held by individual stations, not the networks, and cannot be revoked solely on the basis of content. And more fundamentally, Trump’s statements also show a lack of understanding of the president’s role in making law and policy.

The reality is that despite all of the president’s bluster, laws and government regulation of the media haven’t actually changed. The standards for libel, defined by the U.S. Supreme Court in New York Times v. Sullivan and subsequent cases, are still applied by courts nationwide. The FCC uses the same criteria for renewal of broadcast television and radio licenses. And while the Media Law Resource Center cites some anecdotal evidence that the number of legal claims filed against the media has increased in the past two years, there’s little evidence so far that juries have been more hostile to the media in the cases that have recently made it to trial.

But the president’s frequent rhetorical attacks cannot be dismissed. Forty-five American journalists were physically attacked in 2017, according to the U.S. Press Freedom Tracker, with 24 attacked so far in 2018. The atmosphere of disparagement of the media led to slight drops in ratings of press freedom in the United States by both Freedom House and Reporters Without Borders.

It is important to denounce the president’s diatribes against the media, particularly the “enemy of the people” rhetoric. The media are certainly not perfect, but they play an important role. All presidents have had their differences and frustrations with the media, but most have recognized the essential role that the media play in the governance of this nation. The rights of freedom of speech and the press enshrined in the First Amendment are not just empty rhetoric; they are bulwarks of our democracy. And it is those who would restrict the media from performing this important role as a check on government and as a courier of information to the public who are truly “enemies of the people.”

Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication, and is Of Counsel to Fenno Law in Charleston / Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 years, and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice.

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