The First Amendment is one of the 10 amendments that make up the Bill of Rights. (Ed Uthman / CC BY-SA 2.0)

As we head for the general election, the First Amendment—particularly, freedom of the press—is at risk. In and of itself, this is nothing new. From the Alien and Sedition Acts of 1798 to the Sedition Act of 1918, the Red Scare of the 1950s, the Cointelpro intrigues of the 1960s, the publication of the Pentagon Papers and beyond, press freedoms have often been threatened by the power elites that have ruled America. Each era, however, is defined by unique dangers. This time, in the continuing shadow of 9/11 and the never-ending war on terror abroad and at home, the dangers come not only from the expanded operations of government agencies like the NSA and FBI, but from the ambitions of both presumptive presidential nominees—Donald Trump and Hillary Clinton — who seek control over the levers of mass surveillance and the coercive powers of the state. They also come from a different, largely right-wing direction, animated by a subset of the super-wealthy who are able and determined to use the courts to pursue personal grievances with the media — a technique deployed for years by Trump and recently taken to new, improbable heights by Terry Gene Bollea, the professional wrestler also known as Hulk Hogan, in a dispute with the website Gawker. Understanding the overlapping nature of the current mix requires a detailed analysis, most easily begun with Trump, whose involvement pervades all facets. Personal Vendettas and Defamation Lawsuits In a temper tantrum disguised as a news conference on May 31, which was called to provide a long-overdue accounting of the money he allegedly had raised for veterans, Trump all but declared war on the media, lambasting an assemblage of prominent reporters as “dishonest,” “unfair” and “sleazy” for daring to look into the issue of exactly how much money he had donated. Gruffly responding to questions, he promised to bring the same insulting style to the White House briefing room after his inauguration if elected. Considered by notable mental health professionals to be a brittle narcissist prone to lashing out in speeches and on Twitter at the slightest criticisms, Trump reportedly has compiled his own Nixonian “enemies list,” banning such publications as the National Review, Univision, BuzzFeed, The Huffington Post and Mother Jones, among others, from campaign rallies. This week, he added The Washington Post to the list. He has also threatened, if elected, to initiate an antitrust case against Amazon CEO Jeff Bezos in retaliation for the perceived negative coverage he has received from the Post, which Bezos also owns. But of all the threats against the media that Trump has made, none has been as persistent or pernicious as his vow to “open up” the nation’s libel laws. As I explained in a Truthdig column published in March, what Trump means by “opening up our libel laws” is that as president he would aim, through appointments to the Supreme Court, to overturn or weaken a line of landmark decisions dating to the historic 1964 ruling in The New York Times v. Sullivan. Before that case, defamation lawsuits were considered private matters governed exclusively by state law, and they were decidedly slanted in favor of plaintiffs, especially rich ones who could afford the steep costs involved. To prevail, plaintiffs only had to establish that they had been defamed by a preponderance of the evidence—the lowest standard of proof in our legal system. The Sullivan case changed that by providing protections for defamation defendants under the First and 14th Amendments to safeguard what the Supreme Court termed our “profound national commitment” to uninhibited, robust and wide-open debate. Under the court’s ruling, public officials are precluded from recovering damages for allegedly false and defamatory statements related to official conduct unless they establish by “clear and convincing evidence” (a far higher standard of proof) that such statements are made with “actual malice”—that is, that they are made with the knowledge of their falsity or with reckless disregard for the truth. In a series of subsequent decisions in the late 1960s and early ’70s, the court extended the “actual malice” rule to defamation lawsuits brought by “public figures,” such as Trump and many of the corporations he controls and operates. Because of Sullivan and its progeny, less than 10 percent of defamation cases brought by public figures have resulted in plaintiff victories. Nonetheless, Trump has repeatedly filed defamation claims among the astounding 3,500 legal actions he and his business interests have been involved in over the past three decades. He’s done so because he knows that even if he loses, he can inflict a world of economic pain on his adversaries.
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