By Dan Kennedy • The press, politics, technology, culture and other passions

Tag: William Rehnquist

The Trump campaign lost its libel suit because it really did collude with Russia

Michael Flynn. Photo (cc) 2016 by Gage Skidmore.

A New York state judge Tuesday tossed a libel suit filed by Donald Trump’s campaign against The New York Times. The suit claimed that a 2019 column by former executive editor Max Frankel was false and defamatory because Frankel wrote that the 2016 Trump campaign had colluded with Russian interests.

Two-thirds of Judge James d’Auguste’s ruling is not especially interesting. He ruled that the campaign lacked standing to bring such a suit, and that Trump would be unable to prove Frankel knew or strongly suspected that what he was writing was false — the “actual malice” standard that pertains to public officials and public figures.

So that leaves us with the third leg of d’Auguste’s decision — that Frankel was merely expressing his opinion, which is protected by the First Amendment. The standard was set in a U.S. Supreme Court case called Milkovich v. Lorain Journal Co., in which Chief Justice William Rehnquist ruled that labeling a piece of writing as “opinion” provides no protection if that piece contains assertions of fact that could be proven true or false.

The way Rehnquist explains it is that to say “In my opinion Mayor Jones is a liar” would be unprotected speech (that is, if Jones could prove he’s not a liar, he might be able to bring a successful libel suit) whereas “In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin” would be considered pure opinion and thus beyond the reach of a libel suit.

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So what did Max Frankel do? If you read his commentary, you’ll see he looked at a number of public actions and statements by Trump and people close to him to show that they were toadying to Russian interests, and that not only did the Russians expect something in return, but that Trump and his allies moved in that direction both during and after the 2016 election. We all know this. We all watched it unfold in real time. (It’s important to note in this context that “collusion” is not a legal term anymore than “toadying” is. In other words, labeling such behavior as “collusion” is protected opinion as long as the underlying facts are accurately stated.)

Among other things, Frankel cites the infamous Trump Tower meeting as well as incoming national security adviser Michael Flynn’s lying to the FBI about his discussion with the Russian ambassador before the 2017 inauguration about the possible lifting of sanctions. Those actions led to criminal charges against Flynn, to which he pleaded guilty twice before Trump, as president, pardoned him in the final days of his administration. Frankel writes:

Candidate Trump made no secret of his intention to forge a warm relationship with the Kremlin. But pledges of sanctions relief and other specific moves while not yet in office were unseemly at best and clearly offensive to the American convention that we have only one president at a time. Mr. Flynn especially had to lie because though already in transition to power he was directly undermining Mr. Obama’s still active and punitive diplomacy against Mr. Putin.

Frankel didn’t libel Trump, not just because of the technicalities of defamation law, but because he wrote the truth. Trump might as well sue Robert Mueller while he’s at it.

How Larry Flynt beat Jerry Falwell and expanded legal protections for parody

Larry Flynt in 2009. Photo (cc) by Glenn Francis.

Larry Flynt, who took mainstream pornography to a new low, was an unlikely champion of the First Amendment. Then again, most First Amendment champions are unlikely. As Oliver Wendell Holmes Jr. put it, it’s “freedom for the thought that we hate” that needs protecting, not anodyne statements that offend no one.

Flynt, who died Wednesday at 78, many years after surviving an assassination attempt that left him partially paralyzed, achieved freedom-of-speech immortality because of a parody that he published in his magazine Hustler. It took up a full page and was meant to look like an ad, although the words “Ad Parody — Not to Be Taken Seriously” did appear at the bottom. The fake ad was a takeoff on a series of a real ads for Campari liqueur in which various celebrities talked about their “first time.” The idea was to make it appear they were discussing the first time they’d had sex, only to reveal at the end that they were talking about the first time they drank Campari.

The Hustler parody starred the Rev. Jerry Falwell, founder of the Moral Majority, a leader of the first wave of right-wing television evangelists and a figure of revulsion among liberals. Among other things, Flynt’s Falwell spoke about the “first time” he’d had sex with his mother in an outhouse.

Falwell sued for libel and the intentional infliction of emotional distress, arguing on the latter count that the parody met the legal standard for “outrage.” The case, Hustler Magazine v. Falwell, decided by the U.S. Supreme Court in 1988, established two important principles.

First, on the libel claim, Falwell contended that the parody was false and defamatory. Since he was a public figure, he also had to establish that Hustler published it knowing or strongly suspecting that it was false. A federal appeals court had thrown out the libel count on the grounds that there were no statements in the ad that could be subjected to a true-or-false test. In other words, no reasonable person could possibly believe that Falwell had sex with his mother in an outhouse and had then talked about it for a liqueur ad. The Supreme Court upheld the lower court’s ruling.

Second, the Supreme Court overturned the appeals court’s ruling on the emotional-distress allegation. In so doing, the high court imposed the Times v. Sullivan “actual malice” libel test to claims of emotional distress: in order for a public official or public figure to win such a suit, they would have to show that the offending material contained a false statement of fact — again, with the knowledge that it was false or strongly suspecting it was false. The ruling established a significant new protection for parody and satire.

The unanimous decision, written by Chief Justice William Rehnquist, compared the parody to previous work by Thomas Nast about the corrupt Tweed ring in New York, vicious cartoons about George Washington, and other political and public figures. Rehnquist wrote:

There is no doubt that the caricature of respondent [Falwell] and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description “outrageous” does not supply one. “Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.

Whenever I teach our First Amendment course, I assign my students to write about a major case of their choosing. Inevitably, half the papers are about Hustler v. Falwell, nearly always accompanied by a copy of the ad — just in case I’d forgotten what it looked like, I suppose.

And if you ever get a chance to see the 1996 movie “The People v. Larry Flynt,” you should. It’s a rollicking good portrayal of the whole affair.

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