Monday, January 16, 2017

Of Truth, Fake News and Libel

One of the best things about reading history is the reassurance it provides about the stormy present. Reading how our forbears struggled with the same problems we struggle with today, and got past them, reassures us we can do the same.

Donald Trump, offended at revelations about his personal life, his businesses, his efforts to exclude Blacks from properties he built and rented,  wanted to bludgeon his accusers using the might of his wealth, his highly paid lawyers. 
"One of the things I'm going to do..I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We're going to open up those libel laws. So when the New York Times writes a hit piece which is a total disgrace or when the The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected."

Before we consider any of the principles involved in libel, it should be noted that libel laws, as Mr. Trump implies, are only to protect the rich. Trump can afford to bring libel cases. The average man cannot. 

What are the limits to free speech in America? Ought there be any?
Oliver Wendell Holmes famously declared, "You have no right to cry 'Fire' in a crowded theater, when there is no fire."
The American Civil Liberties Union says there should be no limits on free speech, that the First Amendment is the first because all other freedoms depend on it.
In the Holmes example, one has to say extreme cases make bad law. How many other cases of false claim could result in such immediate loss of life and limb?

In one of the early and most famous cases of libel was brought in a New York state court against a man, Crosswell,  who published a claim by a man who said Thomas Jefferson had paid him to write pamphlets defaming John Adams. The claim was Jefferson had been libeled.
None of than Alexander Hamilton rose to the defense.

The problem Hamilton's defense team had was the judge instructed the jury the truth of the newspaper story was irrelevant; all that mattered was whether or not the story had injured (defamed) President Jefferson.

Hamilton, who had been the target of many such attacks in the press, did not argue that truth alone should be a sufficient defense against libel.  The intent of the newspaper's editor should be considered, but Hamilton argued  that intent could be inferred to be not malicious if what was said was true.

"I never did think the truth was a crime. I am glad the day is coming in which it is to be decided, for my soul has ever abhorred the thought that a free man dare not speak the truth."

Of course, there was all sorts of back ground detail to this argument. As is so characteristic of law, much gets reduced to a single rule. The rules vary by states, in the United States, but for the most part, currently, to be found guilty of libel in America you must be found to have published something which is false, that you must have been or should have been (if you'd done due diligence) aware it was false and had a malicious will to injure the party wronged.

In that setting, truth becomes an absolute defense against libel.

Hamilton and many others in the 18th century were torn, because they lived with a sense of "honor" and fought duels when they felt their reputation had been impugned.  They thought that leaders, whether church or state, should be paragons of virtue because they believed what the leaders did, the lumpen proletariat would follow. 
Thus, Philip Schuyler, the father of Hamilton's wife, urged him to take the case, because Schuyler reviled Jefferson, whom he saw as a reprobate because Jefferson was thought to be an atheist--Jefferson was in fact a Deist--and because it was reported in various Richmond papers Jefferson had fathered mixed race (mulatto) children by his slave, Sally Hemmings. 
Jefferson, Schuyler said, "disgraces not only the place he fills, but produces immorality by his pernicious example."

This idea is still alive today, although I would argue the election of Donald Trump suggests the proletariat is not so easily influenced and can see a man who has failings may serve their own purposes.
She has no trouble with Donald's character

But the idea survives. Just yesterday I heard Cokie Roberts and Lesley Stahl, interviewed about their reaction to the 1987 story they covered about Gary Hart having an affair, which destroyed his candidacy. Roberts said many of the newspaper journalists who covered that story were women and Gary Hart had "hit on them" on any number of occasions.  Stahl said he "used women like Kleenex."

For many women Donald Trump was an anathema because of his gleeful description about how he could grab any woman "by the pussy" because he was a celebrity. 
This is the pernicious example. Roberts claims we ought not try to choose Presidents  by their positions on issues, which can change with circumstances, but we ought to choose them by their "character" as if we can really know much about their characters.

You might argue you can know one thing about Donald Trump's character, and that is enough. But I am not persuaded. Nor were the 53% of women who voted for him who were either not bothered by his frat boy attitudes or who figured what mattered more was whether their husbands got their jobs back in the coal mines.
She voted for Trump, character not determinant 

If this election proved anything, I would submit, it is that "character" does not much matter in choosing Presidents; maybe it should not matter.

But if Trump benefited from that new tolerance, then he has no argument about being libeled. If having terrible things said about you can cause you no actual harm, if you can be elected and get what you seek, then the requirement for libel is lost not simply on the truth of the claim made against you but on the requirement you have suffered actual harm. Trump himself, observed how impervious he is to attacks on his character, when he noted he could shoot a man on Fifth Avenue and his poll numbers would go up the next day.

 Hurt feelings do not constitute libel.

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