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Toledo Legal News - Editorial List Table

 

Existing libel laws protect the right to speak freely – for all of us

 

There is a lot of “libel talk” — and filing of mega-million-dollar lawsuits — in the air, and as long as such stays there the people’s ability to openly criticize public officials is safe.

Advocates of free speech, free press and holding government publicly accountable — liberals and conservatives alike — need to keep cautious eyes on new, perhaps coordinated, efforts to chill critics and water down legal protections regarding public comments about officials and famous individuals. In the space of a few weeks:

Justice Clarence Thomas called for the U.S. Supreme Court to revisit its landmark 1964 decision New York Times Sullivan, which set a high standard for public officials and figures of having to prove “actual malice”— knowing or reckless disregard for the truth — in our speech;

Devin Nunes, R-Calif., has said he will sue Twitter, a political consultant and the anonymous holders of two Twitter accounts for at least $250 million, claiming Twitter has a “political agenda” by allowing the consultant and anonymous accounts — @DevinNunesMom and @DevinCow — to remain active. Nunes also claims Twitter has restricted his ability to reply and “amplified” abusive and hateful content aimed at him;

Nicholas Sandmann, a Kentucky high school student, has sued The Washington Post for $250 million and CNN for $275 million over news coverage of a January incident at the Lincoln Memorial in Washington, D.C., where Sandmann and classmates were face-to-face with a man at an Indigenous Peoples March. The lawsuit claims the Post’s news reports were a “modern-day form of McCarthyism” and — given Sandmann was wearing a Trump-themed baseball call — that its coverage was skewed by a “well-known and easily documented biased agenda against President Trump” and his supporters. Sandmann’s lawyers also said they sent letters to about 50 media organizations signaling potential legal action against those outlets.

President Trump has called for changes in libel law — mistakenly speaking of a federal law on defamation, which does not exist — to make it easier for politicians to sue news organizations. When Sandmann’s lawsuit was announced, Trump tweeted, “Go get them Nick. Fake News.”

Thomas’ call for revisiting the 9-0 Times decision was not supported by any other justice and most court observers consider it more of a call to action in upcoming years — perhaps when more sharply conservative justices are appointed.

In the Times decision, the Supreme Court held that public debate in a democracy should be “uninhibited, robust and wide-open” on matters of public interest and when public officials are involved — later expanded to include most public figures.

Nunes’ lawsuit isn’t given much chance of success: Opinion, satire and hyperbolic language are protected speech. Section 230 of the Communications Decency Act of 1996 protects social media sites because they don’t originate speech or information, but merely convey it. Given that hundreds of news outlets carried initial reports of the incident involving Sandmann similar to the Post and CNN, it may be difficult to single out their coverage as biased because of what the lawsuit calls an anti-Trump “agenda.”

As such, many consider Nunes and Sandmann lawsuits as little more than political posturing. But the impact of bringing those lawsuits — and the potential for more like them — ought to concern us all, whether or not the news outlets ever pay a dime on these two complaints.

We must not forget it’s not just news organizations or social media moguls that would be affected — or the White House or Congress more emboldened — by weakening the Times standards, or by legislative action in states.

All of us would be more exposed when criticizing public officials at any level — and there are tens of thousands of local public officials and staffers who might just want to chill, punish or silence the critics and watchdogs in their particular community.

The nation’s founders faced insults and satire far beyond what officials today face. In 2008, a CNN report documented exchanges in the 1800 presidential race: Vice President Thomas Jefferson’s camp accused President John Adams of being a “hideous hermaphroditical character, a fool, a hypocrite, a criminal and a tyrant.” Adams’ backers called Jefferson “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father” and a “weakling, an atheist, a libertine and a coward.”

From bumper stickers to yard signs to social media posts, we generally can join without fear in the back-and-forth of that “uninhibited, robust and wide-open” exchange envisioned by the high court more than 50 years ago.

The next battles over our freedom to speak, write and post with a critical — sometimes vulgar, even erroneous — manner will take place in the rarified air of our society, and involve the Post, CNN, Congress and perhaps the Supreme Court.

Make no mistake: The impact of chilling or weakening the Times legal protections will reach into every home, every cellphone and every social media post any one of us chooses to make on matters of “public interest.”

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac

Gene Policinski, Freedom Forum Institute

Accountability makes good government

 

As various House committees gear up for a season of investigations and hearings on President Trump and his administration, a lot of people are worried that progress on the nation’s challenges will grind to a halt. I would argue just the opposite: the wheels of government are turning in favor of accountability.

Our system rests squarely on the notion that government officials — whether elected or appointed — need to be accountable to the people they govern. They are responsible for their behavior, their decisions, and the policies they support. They are answerable for their use — and misuse — of the funds and resources they’re given.

They are — or ought to be — just as accountable for the remedies they fail to pursue as for the actions they do take. Accountability safeguards our Constitution, our laws, and our democracy.

Which is why the weakening of accountability in our system over the past few decades ought to worry all Americans. It has become very difficult, for instance, to question a president — a problem that preceded the current occupant of the White House. Presidential press conferences, which once were free-wheeling affairs at which presidents faced sustained questioning from reporters well-versed in their policies, are barely held these days. They are passing from view — and President Trump’s habit of using Twitter to communicate over the heads of people who ask hard questions may well set the course for the future.

In fact, politicians and bureaucrats at all levels have become quite skilled at avoiding accountability. During my years in Congress, I considered it a key task to find out who was responsible for particular decisions — whether the administration was Republican or Democrat. It was difficult then, and has become more so with time.

Meanwhile, it has been reassuring over the past two years to see several national news outlets step up their scrutiny of public officials in Washington, but it remains true that overall there is less investigative journalism than there once was.

Which is a problem because it’s simply human nature to want to avoid being held responsible. If policies are going well and are well received in the polls and by the public, of course, officials fight to take their place in line and garner the credit. If something goes wrong, they fight to get out of the line.

In our system, every official has to answer to some other official. This is a reassuring quality in a governmental structure — but only if officials actually exercise their responsibilities. That’s why the media are so important as a backstop.

Which raises another issue. A lot of players ought to be exercising oversight: members of Congress, the government’s inspectors general, the media — we even have an entire agency, the Government Accountability Office, dedicated to the task. But for them to do their work, the system also needs transparency. Almost every day you see signs of officials hiding what they do from the public — often without real merit.

I’ve always been quite skeptical of the argument that we ought not let this or that piece of information become public. National security is often invoked, or trade secrets, or some other rationale for drawing a veil over the government’s activities. Even when citizens or reporters file Freedom of Information requests, these can be ignored, or turned down.

The problem with this, of course, is that it’s anti-democratic. How are we supposed to make reasoned decisions about who and what we want to see in our government if we don’t know what’s going on and who’s responsible for it?

Perhaps the most famous hallmark of Harry Truman’s tenure as president was the motto he placed on his desk: “The buck stops here.” There’s a reason why it’s so famous, and why people still consider it a standard they wish other politicians would set for themselves.

Americans want officials who will step up and take responsibility for their decisions. They want political leaders who will hold themselves accountable to the public. And they want to see public officials exercise the responsibility handed them by the Constitution to hold others accountable. That the House is moving to do so is not a detour from governing; it’s the essence of good government.

About Lee Hamilton and the Center for Representative Government

Lee Hamilton is a Senior Advisor for the Indiana University Center on Representative Government; a Distinguished Scholar of the IU Hamilton Lugar School of Global and International Studies; and a Professor of Practice, IU School of Public and Environmental Affairs. He was a member of the U.S. House of Representatives for 34 years.

The Center on Representative Government is a non-partisan, educational institution that has developed an extensive array of free civics education resources and activities to improve the public’s understanding of the role of representative government, to strengthen civic engagement, and to teach the skills that are essential to sustaining our form of representative democracy.

The Center was established in January of 1999. The idea for the Center grew from former Congressman Lee Hamilton's recognition during his time in the U.S. House of Representatives of the need to improve the public’s understanding of Congress – its role in our large and remarkably diverse country, its strengths and its weaknesses, and its impact on the lives of ordinary people every day.

At the core of the Center’s work is the belief that our nation’s great experiment of representative democracy has served us well for more than 200 years, but it fundamentally rests on an informed electorate that understands our system of government and participates in our civic life.

Our vision is to have an informed and engaged citizenry that will preserve our democratic principles.

Lee H. Hamilton, Center on Representative Government

Letters will appear in both the paper and the web site.

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