Donald Trump is not the kind of man who might admire foreign laws, but he has showed enthusiasm for English libel law, which places the burden of proof on the journalist, and can lead to crippling fines. It is easy to see why. If the United States had libel laws resembling anything like what Britain has (Scotland’s separate legal system also deals with libel harshly), much of what we know about Trump the candidate would have remained unknown.
That could include his business failures, his tax records that the New York Times unearthed; the Page 3-type photographs of his third wife, Melania, and his misogynistic “locker room” banter with a journalist about how he courted women. That none of this seemed to matter millions of voters is an American tragedy. But those voters can’t claim that they didn’t know the kind of boorish, short-tempered, and insolent man that they have elected to the White House.
In an October interview, Trump said he envied English libel law, saying: “In England you have a good chance of winning. And deals are made and apologies are made. Over here they [the media] don’t have to apologise. They can say anything they want about you or me… England has a system where if they are wrong things happen.” (The US does have defamation laws, but the burden of proof is on the plaintiff, not the defendant as in the UK, and public figures have less protection).
For some time during the campaign, he barred the Washington Post from attending his rallies. He skipped a Republican debate because he found out that a Fox anchor, who asked him tough questions – Megyn Kelly – was going to be the moderator. Trump’s colleagues have carried this attitude further – his former campaign manager Corey Lewandowski was charged with battery for physically attacking Michelle Fields, ironically a reporter from Breitbart, the alt-right website whose chair Steve Bannon is now poised to play a major role in the Trump administration. Kelly has accused a Trump aide of deliberately stirring up trolls. Trump ridiculed a disabled reporter who was critical of his campaign. In his press conference on Wednesday, he refused to take questions from news outlets with which he disagreed.
The only journalism Trump likes is one that praises him or the kind he believes. Truth is not an exactitude, Pontius Pilate was said to have commented, and Trump believes in his truth. Which is why, he could claim, days after being declared winner, that the New York Times had sent an apology letter to its readers for its “biased” coverage and that it had lost readers. The Times had done no such thing, and in fact, its digital subscriptions have been rising. As president, what he thinks the media’s role should be will have profound implications for freedom of expression. In America, this is because it is the US media which will scrutinize him the most. Abroad, this is because of the vast footprint US foreign policy has around the world.
Trump has shown no respect for precedence or tradition. He appears to want a more secretive America, where his privacy is protected, though that of his rivals can be revealed on websites run by those who are given hacked emails. It is right to worry about what he might do to freedom of expression.
The United States has a system of checks and balances, and it is for the press to examine him, the Congress to rein him in when he overreaches, and the judiciary to remind him about the separation of powers. He will have to uphold the US Constitution, of which the First Amendment prevents the state from making any law that curtails freedom of the press. To be sure, it is the First Amendment that has allowed the profusion of the so-called alt-right sites, which provide factoids filled with truthiness, but which have often carried fake news.
When Facebook decided to do away with human editors (because of complaints from right-wing groups that those editors were biased in selecting stories that were trending), algorithms took over, and more fake news dominated Facebook’s feeds. Social media sites are echo chambers, where stories that are shared many times, are assumed to be more popular. A lie, as they say, can run half-way around the world while the truth is putting on its shoes. Google and Facebook have both since taken steps to weed out fake news websites. (The First Amendment applies to the state, not to private entities like companies).
But journalists must be protected by bigger checks and balances – free speech is too important to be left in the hands of Silicon Valley alone. In the pathbreaking case, the New York Times vs. Sullivan (1964), a US court held that a newspaper can criticise a public figure in public interest, even if the information is not true, unless it has shown actual malice. Such judgments allow Breitbart to flourish, but they also allow Jon Stewart, Stephen Colbert, John Oliver, Mother Jones, The Nation, and indeed the New York Times to say what they want. The battle against truthiness, and indeed, against the Trumpian universe, will have to be fought and won in courts and in the marketplace of ideas.
Meanwhile, President-Elect Trump continues to show his contempt for the news media, and play hide-and-seek with the press pool. These are shrewd diversionary tactics. The media ends up dissecting his outrageous remarks (such as his juvenile attack on Meryl Streep after her Golden Globe Awards ceremony speech), while ignoring more serious violations of ethics and standards. Instead of pursuing the trivial, it’s time to focus on the essential. In the 19th century, Americans understood that the price of liberty is eternal vigilance; those words have never sounded more urgent.
Salil Tripathi is Chair, PEN International’s Writers in Prison Committee.