University of Nevada, Reno
Press freedom and libel were the focus of the 1 for All program at the Donald W. Reynolds School of Journalism on April 23, 2019.
A few months earlier, Supreme Court Justice Clarence Thomas had urged a legal rethinking of the actual-malice standard established in the high court’s ruling in New York Times Co. v. Sullivan (1964). Thomas’s view caused some alarm among journalists and First Amendment advocates.
The actual-malice standard holds that reporting critical of public figures can be considered libelous only if the news outlet knows the criticism is false, or publishes with reckless disregard as to whether it is false or not. Since 1964 the Times v. Sullivan standard has protected news media from libel suits brought by politicians and other public figures who dispute what’s been said about them. Essentially it allows the press to make mistakes in the interest of reporting on matters of public importance.
But Thomas said the Supreme Court in that decision interfered with states’ rights to set their own libel standards.
In the 1 for All First Amendment forum in the theater of the Joe Crowley Student Union, veteran First Amendment expert Jane Kirtley delivered her presentation, "Uncommon Law: The Past, Present and Future of Libel in America," to a crowd of about 100 university students and faculty, lawyers, reporters and others. Kirtley is professor and director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota.
She assailed President Donald Trump’s frequent attacks on the news media as purveyors of “fake news,” and his view that current libel law regarding public figures goes against American values and should be changed.
Said Kirtley, “I think [fake news] should mean when a news organization or some other speaker or publisher deliberately chooses to publish information they know to be untrue with the goal of misleading the public. I don't think that's how President Trump defines fake news.”
The public, Kirtley said, can’t trust the government to decide what is or is not truth. She noted further that the actual-malice standard under Times v. Sullivan also protects politicians who lambaste their critics.
“Any determination of truth or falsity that's left in the hands of the government, that fails to recognize the fundamental right of the citizen to criticize without fear, is fundamentally flawed,” she said. “And so, respectfully, I disagree with President Trump when he says our libel laws are un-American. I think they are the essence of American values. They are values that we must preserve."
Assistant Professor of Media Law Patrick File introduced Kirtley and then moderated a question-and-answer session with the audience after her presentation. Earlier in the day, Kirtley met with students in Reynolds School classes.