Over the last nine months, three books – all trumpeted as detailed reports on what's happening inside the Trump White House – have been published with great fanfare. First came Michael Wolff's "Fire and Fury: Inside the Trump White House"; that was followed by Omarosa Manigault Newman's "Unhinged"; and just this week, Bob Woodward's "Fear: Trump in the White House" arrived in bookstores and onto digital screens.
In each case, President Trump greeted their publication with an angry and now familiar denunciation of the laws governing free speech in the United States. "Our current libel laws," he has tweeted and said, "are a sham and a disgrace and do not represent American values and American fairness."
I have been the defendant in several libel cases (all dismissed or withdrawn), a witness in other cases, have covered the epic 1983 libel case pitting attorney Richard A. Sprague against The Inquirer, and studied the First Amendment as a law school student. I disagree with President Trump.
In fact — based on the law and the history of our nation — he is dead wrong.
One of the core purposes of the First Amendment is to give citizens, who are voters, the unfettered right to scrutinize, debate, and discuss the qualifications of political candidates and their performance if they're elected. In 1964, the U.S. Supreme Court made a landmark decision in First Amendment law in The New York Times vs. Sullivan. That case spelled out the three elements that public officials would have to prove in order to win a libel case, and it gave citizens – and the press – great latitude in their freedom to debate and discuss public affairs.
In most elections — whether people are electing a mayor, governor, Congressman, or president – journalists serve as the reporters of what the candidates are saying and doing as they campaign. The best reporters analyze the public statements of candidates, their past achievements and missteps, and investigate their backgrounds in order to provide readers with information that will help them make informed choices at the polls. That is the reason why freedom of the press is a key component of the First Amendment.
As Justice William J. Brennan, Jr., wrote in the Sullivan decision, "We consider this case against the background of a profound national commitment to the principle that debate on public issues be uninhibited, robust, and wide open, and that may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."
Writing for the court majority, Brennan asserted that it is as much the duty of the citizen-critic of government to critique the work of elected officials as it is for legislators to craft and enact legislation. Recognizing that in a democracy, citizens should have the greatest possible latitude in discussing public affairs, the Supreme Court set the bar high for elected officials to win libel suits.
For public officials to prevail in a libel case that focuses on a story about their public duties, the law requires that they prove that the story was false; that it hurt their reputation; and that the writer either knew the story was false or wrote it with a "reckless disregard" of the truth.
Trump's assertions about First Amendment law, said attorney Amy B. Ginensky, who has defended The Inquirer and Daily News in libel cases, is "preposterous. The First Amendment comes first. Unless there's a constitutional amendment, he's not changing a thing."
Equally important, Ginensky observed, libel statutes are decided at the state level, where the scope of enacting change would be beyond the president's power.
In thinking about Trump's views on the First Amendment, I have one suggestion: Our president should read Justice Brennan's decision in the Sullivan case and keep in mind President Harry S. Truman's words of wisdom: "If you can't take the heat, get out of the kitchen."