Threatening the First Amendment

The current political climate has not been a good one for the First Amendment, especially Freedom of the Press. Most recently, of course, is the attempt by the President to stop publication of the unflattering book, Fire and Fury, by Michael Wolff. Black’s Law Dictionary defines prior restraint as: A governmental restriction on speech or publication before its actual expression. Prior restraints violate the First Amendments, unless the speech is obscene, defamatory, or creates a clear and present danger to society. You can’t evoke prior restraint simply because the press says something about you that you don’t like.

What few people seem to realize is that the rules of defamation and libel are different for a public figure, which in US law, is a person such as a politician, celebrity, or business leader. The U.S. Supreme Court recognized in New York Times v. Sullivan, that the strict liability rules in defamation cases would lead to undesirable results when members of the press report on the activities of public officials. The president has gladly admitted he’s a politician, celebrity, and business leader, the categories that define a public person.

In the context of defamation actions (libel and slander) as well as invasion of privacy, a public figure cannot succeed in a lawsuit on incorrect harmful statements in the United States unless there is proof that the writer or publisher acted with actual malice, knowing the falsity or by reckless disregard for the truth. The legal burden of proof for defamation actions is thus higher in the case of a public figure than in the case of an ordinary person.

Champions of the First Amendment, PEN America, sum up the inherent dangers of blatant disregard for the freedom of the press: “The President’s attempt to halt publication of a book because of its content is flagrantly unconstitutional. President Trump’s threats represent a brazen attempt at imposing unlawful prior restraint, a form of censorship repeatedly rejected by the U.S. Supreme Court. For the President of the United States criticism comes with the territory. The President should immediately withdraw and repudiate this outrageous demand, allowing the American people to render their own judgement of the book.”