President-elect Donald Trump
Trump has denounced people in language that punctuated his campaign. If what he said is not pure protected opinion, then the press side ought to take a hard look and see if they have a basis for commencing litigation. They have to think creatively, as no candidate in living memory has denounced the press as he has; no candidate has banned journalists from covering him because they didn’t like the tone or substance of what they are saying. And so, press lawyers ought to bear in mind that if things get rough, if the relationship is one of constant denigration and threats, it may be time for journalists to think about using libel laws in a way that is constitutional.
If what he’s saying is merely rhetorical or hyperbolic in the sense of ‘reporters are no good,’ that would not give [the journalist] a right [to sue]. But if he seems to mean it, if he says a reporter is routinely publishing false material, then maybe we’re moving down the road where a reporter responds by not only saying, ‘It is not so,’ but by going to court.
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— Famed First Amendment attorney Floyd Abrams, in comments given to the Hollywood Reporter after moderating a discussion between Edward Snowden, Daniel Ellsberg, Max Frankel, and Noreen Krall about national security and the media hosted by the Media Law Resource Center. Before the discussion began, Abrams referred to President-elect Donald Trump as the “greatest threat to the First Amendment since the passage of the Sedition Act of 1798.”
Staci Zaretsky is an editor at Above the Law. She’d love to hear from you, so feel free to email her with any tips, questions, or comments. You can follow her on Twitter or connect with her on LinkedIn.