This column was originally published by Truthdig.com.
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.
In one such case, initiated in New Jersey in 2006, Trump sued Time Warner Books and writer Timothy O'Brien, then a reporter with The New York Times and now the editor of Bloomberg View, alleging that he had been libeled in a biography O'Brien had written, "Trump Nation: The Art of Being The Donald." The purported defamation was O'Brien's claim that Trump's net worth was actually in the neighborhood of $150 million to $250 million rather than the $5 billion to $6 billion, he had claimed.
After five long years of litigation, O'Brien won a ruling from a state appellate court granting judgment in his favor and finding that Trump could not, as a matter of law, meet the actual malice test.
Unbowed and unrepentant, Trump told Washington Post reporter Paul Farhi earlier this year: "I spent a couple of bucks on legal fees, and they [O'Brien and Time Warner] spent a whole lot more. I did it to make his life miserable, which I'm happy about."
He has followed a similar tack in one of the federal fraud lawsuits pending in San Diego against the now-defunct Trump University, lodging a defamation counterclaim against plaintiff Tarla Makaeff for speaking out in letters to the Better Business Bureau, her bank and government agencies, and in comments published online, against the instructional real-estate program that bore his name.
The counterclaim was eventually thrown out by the 9th Circuit Court of Appeals also relying on the Sullivan decision. The case is now set for trial in late November.
Interviewed on Fox News by Megan Kelly last month Trump doubled down on his litigation rationale. "[I]t's a tactic for me," he acknowledged. "It's a business for me, and I have been successful, and I've ... used litigation ... sometimes ... maybe when I shouldn't."
It would be bad enough if Trump were the only 1 percenter who used meritless defamation complaints as a means to punish his critics in the press and elsewhere. But he isn't. To the contrary, he's created a template that others have followed.
In 2013, for example, Idaho billionaire and longtime Republican donor Frank VanderSloot sued Mother Jones magazine for defamation related to a 2012 story about VanderSloot's $1 million contribution to Mitt Romney's super PAC. Although Mother Jones managed to have the case dismissed two years later, doing so cost it and its insurer $2.5 million in legal expenses, including $650,000 in out-of-pocket costs for the magazine.
Like Trump, whom he now supports for president (after initially backing Marco Rubio), VanderSloot has no regrets. Despite his courtroom setback, he's created an endowment--the Guardian of True Liberty Fund--to help defray the legal expenses of others allegedly defamed by Mother Jones and other liberal press outlets.
The chilling effect on press freedoms posed by such undertakings, especially for thinly capitalized publications, couldn't be clearer.
Hogan, Litigation Funding and the Demise of Gawker
Last Friday, Gawker Media LLC, the publisher of the eponymous celebrity online gossip blog, petitioned a federal court for Chapter 11 bankruptcy protection prompted by a $140 million civil judgment that had been returned against it by a Florida jury this March in an invasion of privacy case brought by Hulk Hogan (Terry Gene Bollea).
Hogan's case against Gawker began in October 2012 after Gawker posted a videotape showing the wrestler having sex six years earlier with a woman named Heather Clem, the wife of Hogan's then-best friend, Todd Clem, a former Florida radio disc jockey who had legally changed his name to Bubba the Love Sponge. The tape had been filmed surreptitiously by Bubba, and was subsequently sent to Gawker by an anonymous source.
Seeking damages for emotional distress, Hogan's lawyers based their complaint not on defamation grounds, but on privacy violations. In particular, they argued that Gawker had committed a tort (or civil wrong) recognized in most states, including Florida, that creates liability for the publication of embarrassing private facts.
Unlike defamation claims, which assert that published material is false, privacy actions like Hogan's permit recovery for the publication of true stories. In addition, plaintiffs suing for the publication of private facts are not subject in most jurisdictions to the Sullivan rules requiring a showing of actual malice or recklessness. They must, however, prove that the published facts were not "newsworthy" or a matter of legitimate public concern.
With the newsworthiness of the video as the central issue, the case was fiercely and expensively litigated all the way through trial, with Hogan's attorneys arguing that the tape was nobody's business and Gawker's lawyers countering that given Hogan's celebrity status and long-standing boasts of sexual prowess, the tape was of genuine public interest and its publication protected under the First Amendment. The six-person jury seated in the case resolved the issue against Gawker.
In late May, in a bombshell that Gawker apparently never saw coming, Silicon Valley billionaire Peter Thiel, a co-founder of PayPal and chairman of the lucrative Clarion Capital hedge fund, revealed that he had secretly ponied up $10 million to help pay Hogan's legal expenses.
Thiel had been outed as gay in a 2007 article posted on a Gawker-controlled website. His decision to come to Hogan's aid, he explained in an interview with New York Times financial columnist Andrew Ross Sorkin, was "less about revenge and more about specific deterrence. I saw Gawker pioneer a unique and incredibly damaging way of getting attention by bullying people even when there was no connection to the public interest."
Notwithstanding Gawker's undeniable sleaziness, the crippling damage award entered against it carries enormous implications for other, entirely legitimate publications accused of going too far in exposes of public figures. Just as Trump has created a model for defamation attacks on the media, some commentators, such as Fusion's Felix Salmon, fear that Thiel has fashioned a "blueprint" for other billionaires to transform the "concept of philanthropy" into "weapons-grade attacks on America's free press."
Should the jury's verdict be upheld on appeal, its impact could indeed be far-reaching. In the meantime, Thiel will be heading to the Republican convention next month in Cleveland as a California delegate for--you guessed it--Donald Trump.
Clinton, Trump and the Chilling Effect of Government Surveillance
As important as they are, the dangers to press freedoms stemming from right-wing Republican litigation are by no means the most severe. Even greater are the threats that come from government surveillance and the prosecution of whistleblowers--practices that are strictly bipartisan.
The mass spying systems erected by the NSA, FBI, CIA and other government agencies in the aftermath of 9/11 not only imperil Fourth Amendment rights, but they also have a chilling effect on First Amendment rights, curtailing investigative reporting as well as the public's access to vital information.
As the writers' advocacy group Pen America concluded in a 2013 study, the modern security state has forced some journalists to self-censor their work, and also left confidential informants afraid to come forward.
Writers, too, have become targets of direct harassment. In perhaps the most egregious instance of its kind, New York Times reporter James Risen was threatened with federal prosecution for seven years for refusing to testify in the espionage trial of former CIA employee Jeffrey Sterling.
Both journalist Glenn Greenwald and filmmaker Laura Poitras were also threatened with arrest after their receipt of evidence from Edward Snowden of covert NSA spying. Even before the Snowden leak, Poitras had been detained some 40 times by agents of the Department of Homeland Security at American airports because of her work on U.S. military involvement in the Middle East.
Under the Obama administration, there have been eight prosecutions of whistleblowers for violations of the 1917 Espionage Act. Before Obama, there had been only three.
The subject of what to do with Snowden, the most famous whistleblower of them all, was raised during the primary season in the presidential debates of both parties.
In a GOP session in March, Trump branded the former NSA contractor "a spy" who should be brought back from Putin's Russia to face trial.
In the first Democratic debate, in October, Clinton took a nearly identical position, declaring that Snowden "broke the law" and shouldn't be allowed to return home "without facing the music."
In a speech delivered in December after the Islamic State-inspired mass shootings in San Bernardino, California, she went further, calling for an "intelligence surge" in the war on terror, including greater monitoring of suspects and increased oversight of social media. She has renewed those calls in the aftermath of Sunday's carnage in Orlando, Fla., while Trump has launched several Islamophobic tirades.
Whatever important differences they may have in other policy areas or in terms of personal style, temperament and experience, neither Trump nor Clinton can be counted on as an ally or partner in the struggle to preserve freedom of the press against excessive state surveillance.
To protect a free and open press--to the extent it is still possible at all--we'll have to rely on ourselves, remaining ever skeptical of those in power, and, as the old saying goes, "eternally vigilant."