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Jan 17, 2018

Washington woes, a Charleston charade and some hope

My January column for the South Carolina Press Association...
 
When I was a legal fellow at the Reporters Committee for Freedom of the Press we had an “outrage meter” drawn on one of the whiteboards in the reception area. The “needle” on the meter would be redrawn frequently, either towards the left or right, depending on the latest developments in media law and the perceived threats to freedom of speech and the press.

During most of my tenure, the outrage needle mainly fluctuated in the middle range. But if the Reporters Committee still has such a meter, recent developments on the national level and here in South Carolina would be pushing the needle into the red danger zone, and perhaps beyond. But there are also reminders of the importance of the First Amendment, and the role of robust media in the democratic process.

President Trump’s Fire and Fury: A letter from President Trump’s personal lawyer to the publisher of the book “Fire and Fury” demanded that the book be withheld, and threatened to get a court injunction. Of course, the letter had the opposite effect: the publisher’s lawyer sent a defiant response, and the book was released a few days earlier, both to defy the request and at the same time to capitalize on it.

The book has gone on to become a best seller, showing that often the best way to draw attention to something is to denounce and try to ban it. But it’s also important to recognize that, despite all the bluster, there’s actually very little beyond rhetoric that President Trump or his lawyers could do to stop distribution of the book. The courts have been extremely wary of ordering people to not speak, with the U.S. Supreme Court holding that such restrictions may be imposed only when the government has a compelling government interest of the highest order. “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity,” the court majority said in United States v. New York Times, regarding publication of the Pentagon Papers. Political and personal embarrassment for the president, even if such material could subsequently be shown to be libelous, simply does not reach the threshold for imposing a prior restraint on speech.

Libel Lunacy: After the threats failed to stop “Fire and Fury” from being published, the president returned to an earlier fixation: the alleged need for reform of our libel laws. Reprising a canard from his campaign speeches, Trump began a cabinet meeting that was open to the press by reading a statement that “Our current libel laws are a sham and a disgrace and do not represent American values or American fairness so we’re going to take a strong look at that. We are going to take a strong look at our country’s libel laws so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts.”

As with his previous statements, Trump’s statements about libel laws are incorrect in two ways. First, the current libel law is exactly what he claims to want. When “somebody says something that is false and defamatory about someone,” that person does indeed have meaningful recourse in our courts. This is particularly true of private individuals, who in many cases (those not involving a matter of public interest) don’t even need to prove that the statement was false. (Instead, the defendants in these cases has to prove that the statement was true.) Public officials who create and implement government policy, and well-known public figures, have to meet a higher standard. They must show that the statement was false, and also that the speaker acted with “actual malice:” either they knew that the statement was false, or had strong reason to suspect it was false but made the statement anyway.

This is admittedly a high standard, and a difficult burden on libel plaintiffs who are public officials or figures. But the courts have explained that such plaintiffs are able to use their own positions to counter negative speech against them: a technique the president himself has often taken advantage of. And, more fundamentally, the Supreme Court ruled that such a high threshold for public officials is required by the First Amendment, which it said embodies “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Second, defamation is a matter of state law, which the Supreme Court has held is subject to limitations and requirements required by the First Amendment. The only change that could be effected at the federal level would be to amend the Constitution to rework the First Amendment. Not only is such an amendment exceedingly unlikely, any such change would still leave the application of the new provisions to the courts, which may or may not rule the way that Trump appears to prefer.

Meanwhile, in Charleston…: Back in August, I wrote about a Charleston psychiatrist suing over a pseudonymous single star review on Google which he claims harmed his practice, even though he didn’t lose any patients. The psychiatrist asked a Charleston court to order Google to provide information to reveal the posters’ true identity, in order to proceed with a libel lawsuit against the poster.

But one of the requirements for a statement to be libelous is that it must be false. Implicit in this requirement is that it must be possible to prove that the statement is either true or false. An opinion—especially this one-star review, with no other statement—does not make any sort of statement that can be proven true or false. This is an example of a pure opinion, which cannot be the basis of a libel suit.

Because of this, the trial court should have refused the request for information about the poster, since a libel suit based on the review is not viable. The court should also have recognized the protection for anonymous and pseudonymous speech that the U.S. Supreme Court and other courts have said is rooted in the First Amendment.

Nevertheless, on Aug. 23 Common Pleas Court Judge J.C. Nicholson issued an order requiring Google to reveal information about the poster’s identity. (The decision was first reported last month by Techdirt.)

Incredibly, Judge Nicholson justified this on the grounds that the online review was “commercial speech,” which under U.S. Supreme Court precedent does not receive as much First Amendment protection as other forms of speech. (This lower protection is what allows, for example, laws against false advertising.) But the one-star review was a statement about the psychiatrist, not speech promoting a competitor. Even if the pseudonymous poster is a competitor, it is a stretch to say that a one-star review, with nothing else, would be promoting a competitor in any significant way.

Google provided the requested information after the court’s ruling. But then, after apparently using this information to determine the true identity of the pseudonymous poster, the plaintiff told the court that “justice and judicial economy would best be served by dismissing this suit without prejudice and taking no further legal action at this time.” Thus the court dismissed the case on December 27, 2017.

The dismissal was “without prejudice,” so the case could be refiled at some point. And Judge Nicholson’s vastly overbroad definition of commercial speech remains highly problematic. But the decision is not binding on future cases, so the damage from the ruling is limited. What is likely, however, is that another South Carolina court is going to have to squarely confront the question of what standards should apply to the unmasking of anonymous and pseudonymous posters online.

A Hopeful Post: With President Trump continuing to tilt at media windmills and Judge Nicholson’s overreach to unmask a pseudonymous speaker, it’s easy to become discouraged about travails of the media and the legal and other challenges that they face. Then a movie like The Post comes along. While it’s not a documentary, it is a more or less accurate depiction of the challenges—legal and otherwise—that the Washington Post faced in publishing the Pentagon Papers, a history of American involvement in Vietnam which has been designated classified by the government. Some have argued that the movie should have been about The New York Times, which was the first newspaper to start publishing articles based on the Papers. But what the film shows is that the media—the Post, the Times and sometimes even pseudonymous posters online—can play an important role in our democracy, by holding people in power accountable. If some of those people in power object; well, that’s sort of the point.

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