President Donald Trump would like to see the libel law in this country changed. He and his administration have routinely suggested as much, but with social media, they have a weak argument.
To understand why social media should play a role in libel cases, specifically with public figures, you first need to understand libel laws.
What is libel?
Libel is when something is written that is false and damages someone’s reputation. Keep in mind that opinions are protected, though.
{mosads}For example, if someone publishes an article about you saying that you steal money from your work to pay for your puppy-fighting operation, presuming that is not true, you could sue the writer for libel. Even if the writer really believed this for whatever reason, negligence is not a defense if it is not true.
Now it gets a little tricky with opinions — if that person publishes a blog that says you are terrible at your job, and that they don’t think a puppy could ever love you, that’s an opinion which is protected speech.
Ready for the next layer? If you are a public figure, like Trump, then winning a libel case is even more difficult. That’s because of a concept that the courts have called “actual malice.”
Actual malice means a public official needs to prove in court more than just something was falsely written that harms the person’s reputation. The public figure must also prove that it was published with “reckless disregard” for the truth. Meaning that the writer knew it was false or made no effort to seek the truth, yet they published it anyway.
Social media protects public officials
One reason why public figures have this extra burden to prove is because the courts don’t want to stifle criticism of people of prominence, especially public officials. Another major reason, however, is that public figures have the means to respond back to the public.
Even before social media, if a public figure, like Trump, thought something was published that was inaccurate, he would be able to respond on traditional media channels that would want to hear his side of the story. The rationale is that public figures have a microphone, while the regular Joe does not.
And now with social media, public figures, who often have massive followings, can respond to the public directly, as Trump often does.
Keep the current libel laws
Do not misinterpret this article to mean that anyone should be able to publish anything about a public figure just because they have social media to defend themselves. There are still strong libel laws and if someone publishes false information with no regard to the truth, they should be held accountable. And that is the law that is in place now.
Changing the libel laws, though, would create volatility with our first amendment rights.
Think of it this way — are you well-versed in libel laws? If it is “opened up” like Trump wants, you are subject to that, too. Be careful next time you tweet something negative about a public figure; you might be open to a libel case.
How libel laws can be changed
The truth is, and I put this at the bottom of this article so you would read this in its entirety, Trump cannot directly change the libel laws.
The laws are defined by state courts and state legislatures. Additionally, the Supreme Court has placed constitutional limits on how states can define libel. To change that would require either the Supreme Court to overrule it or a constitutional amendment.
Restricting freedoms
Even if you believe Trump is being treated unfairly by the media, nothing has been published by the mainstream media that has risen to the level of actual malice. Perhaps some stories have contained minor mistakes, but that will happen in a free press.
And remember, it was Trump who went on mainstream media outlets to falsely claim that former President Barack Obama was not born in this country. Perhaps Trump should be careful what he wishes for.
If laws do change, then some of the freedoms you take for granted on social media, where most people publish to the world, may be taken from you.
Besides, how could we enjoy Jimmy Kimmel’s “Celebrities Read Mean Tweets” knowing that many of those people could be sued?
Adam Chiara is an assistant professor of communication at the University of Hartford. He has worked as a legislative aide in the Connecticut General Assembly, as a journalist, and as a public relations practitioner. He’s on Twitter at @AdamChiara.
The views expressed by contributors are their own and are not the views of The Hill.