The election and presidency of President Donald Trump has blown a hole in the foundation of the First Amendment.
Ironically, Trump’s desire to use the First Amendment to shield himself from liability in a defamation suit has exposed the tenuous underpinning of our First Amendment case law.
Summer Zervos was a contestant on Trump’s reality television show, “The Apprentice.” She accused then-presidential candidate Trump of sexual harassment that purportedly occurred in 2007. Trump denied the allegations, and, in his characteristically understated style, tweeted that those allegations, and similar allegations made by other women, were “nonsense,” lies,” “phony” and “100 percent fabricated.” Zervos then claimed that Trump’s comments amounted to defamation.
This is where the clash between defamation laws and the First Amendment begins. Defamation protects people from lies that harm their reputation. A successful claim for defamation basically requires a plaintiff to show that the defendant made a false and defamatory statement that injured her reputation. But the First Amendment can protect our ability to freely express ourselves — even if we lie and hurt someone’s standing in the community.
There are a number of defenses to defamation claims. The first is truth: If it is true that Zervos fabricated her allegations against Trump, then his statement explaining that cannot be defamatory. If Zervos can show Trump did, in fact, sexually harass her, then he is making a false statement when he says her allegations are totally fabricated. Simply put, Trump would be lying by calling Zervos a liar. This is why defamation suits provide a backdoor for litigating sexual harassment claims.
A statement of opinion, as opposed to fact, is another defense. So if Trump had said something like, “I think Zervos isn’t telling the full story,” that would clearly be an opinion, and could not be defamatory. This is why political cartoons are not defamatory in the U.S. But here what Trump said comes far closer to a factual statement akin to “she lied.”
In addition, statements on matters of public concern (such as alleged sexual harassment) are typically given heightened First Amendment protection.
This is even more true with respect to political speech. The First Amendment is most concerned about censoring political speech, and for good reason: Without the First Amendment, the government would be tempted to censor its critics. Political speech stands at the core of what the First Amendment protects.
If you want to defend against a defamation suit, it is a great idea to claim you were just expressing an opinion and engaging in political speech. This is exactly what Trump’s attorneys have done. They contend that his comments were “part of the expected fiery rhetoric, hyperbole and opinion that is squarely protected by the First Amendment.”
Trump is trying to narrow the already-narrow instances in which defamation suits can be successful.
Whether or not this defense is hogwash, it raises a crucial legal point. Trump is trying to narrow the already-narrow instances in which defamation suits can be successful.
On the flip side, he is trying to broaden the already-broad protections afforded by the First Amendment in these cases. He is doing it based on legal principles that basically boil down to this: Even if you spew vile, disgusting speech which harms at least one person, it is better for the government not to limit the speech, because in our grand marketplace of ideas the truth will sort its way out.
The marketplace of ideas metaphor first appeared in a Supreme Court case almost a century ago, in a 1919 dissent authored by Justice Oliver Wendell Holms. It has since become a bedrock of our First Amendment jurisprudence.
The marketplace of ideas is an idyllic place where the truth wins and lies lose. It is majestic place where people exchange thoughts and the “best” ideas rise to the top and are generally accepted.
If this place ever existed, it existed when we had town squares — not an endless echo chamber of social media posts. The idea of the marketplace of ideas is that it represents the marketplace, not your marketplace (or your cable news channel) and my marketplace (or my favored “news” sites).
It speaks to the current state of affairs and political climate that this case has flown relatively under the radar.
The marketplace metaphor works when we can all agree on the veracity of reporting from at least a few key sources. If each half of the country thinks the other half is getting their information from “fake news,” that fundamentally undermines our ability to communicate, exchange ideas and allow the truth to emerge.
In Trump’s America, we can’t even agree on how many people attend a publicly televised event, like say, an Inauguration. In fact, it speaks to the current state of affairs and political climate that this case has flown relatively under the radar. There are simply too many daily arguments about what is or is not happening in Washington D.C. to keep track of everything.
Our current era is one of balkanization. Half the country is absolutely convinced that the other half is living in some sort of fever dream.
This is no city on a hill. This is no marketplace of ideas.
So in attempting to wrap himself in the First Amendment, like a cloak of protection, Trump is actually demonstrating the fallacy of what undergirds our First Amendment tradition.
None of this means we should weaken the First Amendment. It means we should rethink the rationale behind a metaphor that just doesn’t work in our era of “my news and your news.”
Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, and is the president of the Los Angeles Ethics Commission.