>> host: want to play comments from president trump last week, general meeting an embedded patient that you the vice president terms of mike pence conversation with ukrainian president. >> impeachment for that? when you have a wonderful meeting or you have a wonderful phone conversation? i think you should ask, that was the second conversation i think you should ask for the first conversation also. i can't believe they haven't come i heard there's a rumor out there they want the first conversation. it was beautiful. it was just a perfect conversation -- >> awc family foundation fellowship at the heritage

foundation. it's not like to welcome you to the heritage foundation for this panel discussion and i will preserve the constitution service. the freedom of the press as all americans know is contrite in the first amendment. the free press is a necessary component of self-government and hallmark of a free society. that is not in question. in fact, it's nonnegotiable. free speech, however, is not the exclusive prerogative of the press. the first amendment you will remember protects the free speech rights of all americans, not just those who so happen to have an ma in journalism. the press, in other words, is itself subject to free speech just like everyone else is. journalists do not take well to criticism, and to say this as a recovering journalist myself. there is a tendency in the media to equate criticism of the press, however well-founded, with an attack on freedom of the press itself.

but i think you can be committed to free speech while attacking those who abuse it. what's more, the freedom of the press, all freedoms, is not without limits. there are no prior restraints on publication, , those days are thankfully long behind us, but the press is responsible for what it says, especially if it defames an individual. libel laws are also an integral part of a free society. in the 1964 landmark supreme court ruling of new york times v. sullivan the supreme court considerably raised the burden of proof for public officials over seeking damages for libel to the standard of actual malice. this standard has in effect granted the press near blanket immunity and thus considerably expanded its powers. just as clarence thomas has recently expressed interest in revisiting the standard that the court articulated in sullivan,

he described the standard as quote, almost impossible to satisfy. today, we take up the question implicitly raised by justice clarence thomas, do the present limits on the press serve the common good? we have assembled a distinguished panel to discuss and debate the matter. because at the heritage foundation would like to debate on these difficult and contentious questions. speaking first will be my colleague arthur milikh who will set up the framework for which we should think about the power of the press here arthur is the associate director of the center for principles and politics are at the heritage foundation and he conducts research on america's founding principles. he also gives talks on the tenets of the american political traditions, for the public at large and look officials here in washington. he is written in outlets including an essay i would commend to your attention.

he published an essay on benjamin franklin's critique of the freedom of the press and national affairs the few good to go. it's excellent. arthur will be followed by elizabeth locke to argue against the sullivan ruling. libby is a highly accomplished defamation lawyer and commercial litigator who devotes her practice representing clients for facing high-profile reputational attacks. in the courtroom, libby was lead trial counsel for -- antidefamation accident against rolling stone magazine in which she secured a $3 million jury verdict for the false and definitely article about an allegedly gang rape at the university of virginia. outside the courtroom, some of her biggest definition wins our stores the public will never hear about. she has killed flawed articles, storylines, broadcast segments in outlets including the "new york times", the "washington post," "vanity fair," and the dr. oz show. last but not least will be lee

levine who will argue for the sullivan ruling. lee has represented media client in various first amendment cases for more than 35 years. he has twice argued for me to defendants before the supreme court, litigated in the course of more than 20 states and the district of columbia, and appeared in most federal appeals court and at highest court of ten states. chambers usa called him quote, the greatest first amendment attorney in the united states. and with that please turn in welcoming our panelists. [applause] >> it's an honor to be here with my fellow panelists. we are friends of the free press because it's absolutely necessary to republican government. you cannot have political liberty without a free press. but contained in its principles is a corrosive side.

the press as people of the past several years is driving people away from it. and in creating great distress it loses its softer effect on society. the 2016 presidential election, for example, was a shocking moment in which many americans witnessed much of the press doing all in its power to select the president on behalf of the american people. these actions disclose a test of the pain at the process of itself, not nearly the fourth estate but the creator of would-be rulers and, therefore, themselves the master or at least the kingmaker. the news media often thinks the freedom of the press refers to it alone and that it's freedom is absolute, for which reason they think we are beyond even criticism. this is part of the reason the press hates president trump so much. he questions the and accuracy. today there are considerably fewer restraints on the press and likely at any time in u.s. history. in practice this means the press is restrained only by its

conscious, or sense of shame. the nation in separate light on this sense of shame to prevent the spread of falsehoods or irresponsible recording. this afternoon i'd like to limit myself to discussing the observation of two penetrating thinkers, benjamin franklin and alexis de tocqueville who can help us understand our current circumstances. i don't do this for integrating or merely scholarly reason. they sought with great clarity both the good and the bill that comes from the freedom of the press. so to develop our analysis we should take a step back and look at the press original purpose. the press is meant to attack dogmas in both science and politics. we might first recall the freedom of the press does not refer to the news media about it also means needs the publication of science and its circulation, and this is arguably the most successful element of the freedom of the press it so successful it's been forgotten. the second purpose and benefit is what we all already have in

mind which is attacking dogmas in politics. this means a free press woodfin political liberty against its enemies like tyranny, monarchy and slavery. the popular press for the news media as we call it today would have an essential role in preserving our form of government. it would compel the responsibility of government to serve the public faithfully by vigilantly guarding against corruption and abuses. an de tocqueville goes even further. he says newspapers not only guard freedom but they maintain civilization. even the press doesn't speak so highly of itself. newspapers bring together local communities to help rule themselves politically. they simply cannot happen without newspapers, de tocqueville says. so as we already know, very much is at stake in having a good press. the press as is understood by the founders is motivated to act, attacking false scientific knowledge, falls a little dogma and uncovering corruption for

the sake of preserving republican government. this is good. but just like the press should compel government to be responsible, so too did some loss compel the press to be responsible itself. so that's the good. here's the bad. neither franklin no de tocqueville were naïve about the possible bad effect of the press and, in fact, predicted many of them. as de tocqueville says he loves the freedom of the press, encoding, out of consideration for the evils it prevents, much more than for the good it does. franklin agrees indo-american found had more experience in the press and him. he became a multimillionaire to the press and he spent his entire career in it. i want to lay up for you in broad terms franklin's critique. first come franklin observed that the press often -- the press often attempts to imitate the dignity and the procedures

of a court of law. it holds mock trials, passes judgment, sentences, holds mock executions and condemns people. it does all this on its own discretion by picking and choosing its own causes and enemies. it does this mainly by -- according him -- receiving promulgating accusations to which it can condemn anyone. they can condemn both public and private individuals and institutions. but while it imitates a court of law, unlike the court it is not limited by jurisdiction. it has a roaming jurisdiction. nor is everything making intelligible precedent like a court of law is. indeed, in its actions it's sometimes franklin says half jokingly, it behaves like the spanish inquisition. no grand jury evaluates the truth of the press accusations know it's there swelling of the truth by the accusers. instead anonymous unverified statements are sufficient to

move public opinion. as they prove false these individuals go unpunished. nor is the accusers reputation ever fully restored. in conducting these mock trials, the press has the remarkable power over citizens minds. franklin writes, the proceedings of the press are sometimes so rampant that an honest, good citizen may find himself suddenly and unexpectedly accused and in the same morning judged and condemned and sentence pronounced against him that he is a rogue and ability. this is what happened to the covington kids and this is the ongoing mock trial of president trump. the press of course cannot burn you at the stake as inquisition could, but it can't intimidate you. in doing this can compel belief all while claiming to persuade your reason. franklin in this par the capacity to crush the voice of reason citizens making them browbeaten and partisan. the freedom of the press in an

odd way can lead to the unfreedom. given these massive powers come franklin is interested dig out who composes this class of journalists. we should remember at the time this was a new human type emerging. he said in the past nations had restrictions on who could enter into the publishing world. in some places individuals were chosen by an executive or a council on the basis of that persons virtues so let's say their education, prudence, intellectual abilities. or in some cases the position was inherited and, therefore, tradition or order would restrain them. but when the press is open to anyone it will often attract a certain type, and here franklin cheekily observes, this type is the one in 500 who will have the privilege of accusing and abusing the other 499 parts at their pleasure. he feared this class may attract individual animated by this desire. surely there will be those like

franklin himself who care about the public good, but why the fears is this new attitude and its secret motive for unified a new class which will hold too much sway over society. yet despite these abuses, , the press continue to have enormous power. that's because there's a natural support in us, and that is human resentment. the publix case for destroying and humiliating others. accordingly, the press that appeals, i'm quoting them, to those who desire despairing to rise into distinction by their virtues, or happy if others can be depressed to a level with themselves. the press loves exposing private vices for the satisfaction of the public appetite for such things. flatters the public by saint look at these people, they are greedy, ruthless, immoral. you can look down on them or pretend you're nothing like them. today the press even says your president is merely insane and

middle and hence. he is certainly not a very stable genius. [laughing] thus, emerges a coterminous relationship of mutual dependence on the one in the press wants to rule the public mind companies company event tc allows this because of its desire to be flattered for its jealousies to be satisfied or being grateful the press doesn't target them. and here is where de tocqueville picks up the thread. he's astonished that while america is so free, so stable, so prosperous unlike his own country france france, he says america's press has the same destructive taste as in france and the same violence, without the same causes for anger. allow me to read you a short passage from a local newspaper which de tocqueville quotes and democracy in america which i suspect he invented. but it's exemplary. he says this from a local

newspaper. in all this affair the language help to my president jackson has been that of a heartless despot, occupied so with preserving his power. ambition is as crying and he will find his penalty in it. his intrigue for a vocation and intrigue will confound is designed and rests his power from the party picky governs by corruption and his guilty maneuvers will turn to his confusion and shame, the hours of justice approaches. soon he will have to give back what he is one to repent is not a virtue fits ever been given to his heart to know. this could've been written yesterday. [laughing] but we should pay very special close attention when de tocqueville gives examples like this especially when he invents them. what this little quote says is that president jackson stands too tall, vis-à-vis the press. he must repent as they are the only confessor. he's demanding this, the press

pretend to go for the sake of the people but it actually agitates them ceaselessly and is willing quote to alter and denature the facts. for the sake of its own significance. what moderated this power, at least in de tocqueville stein was a quasi-decentralized nation. in the america of de tocqueville time he says there are more local associations and newspapers than anywhere on earth. that's because the more free people administers its own affairs look like the more newspapers necessary for them to communicate with one another to govern themselves. de tocqueville american was fragmented which is to say it's not go back centralized authority. when people are still free, to talk about the press could cure what he calls individualism through newspapers. this is not the rugged individualism often extol. rather, he moved the increasing isolation and weakness of citizens such that they ruled almost solely by public opinion and eventually a vast state.

his lesson is this, the more numerous our newspapers, a society. but de tocqueville warns the more centralized the nation, the fewer the newspapers. in fact, the decentralization of newspapers prevents the unity of the press from unifying as a class onto itself and ruling the nation. but looking at france in his time come he fears that can even develop unity between the press as a whole and the political party. as he says a a friend under the conditions, the power of the press will be quote, almost without bounds. it can compel government into truces and perhaps even topple them. it's not outlandish to imagine even in america that the major press organ can at some point come to a tacit agreement to fight among themselves as then you did in the run-up to the 2016 election. but thank goodness for the internet. a few words to conclude.

for de tocqueville moderating the abuses of the press means more newspapers, or in our time getting it. regrettable if there's not a movement to shut down the freedom of speech on the internet which contains many news outlets that counterbalance the power of a united press. returning to franklin, he has two solutions. he thinks the public should be wary of press decide to build and he thinks moderate this is through satire, through criticism and satire of the press. nbc's this debate. with so many movies exposing the military, the church to whatever other institution as corrupt. there's never been a movie about the press. they are always heroes. finally, franklin thinks the laws like with in the states today i presume, would protect both citizens and public officials. but he doesn't specify what kind of libel laws. and so with that i turn to my fellow panelists.

[applause] >> i want to thank heritage for inviting me to speak today. it's a real honor to be invited to speak in such a distinguished panel, especially to arthur and david, to john malcolm. so i'm here today to argue against the "new york times" versus sullivan standard. but let me start by saying this. unless someone with it person who critics. unless someone who dislikes free-speech. to the contrary, the first amendment is to be celebrated. it's what separates our great nation for most of the countries on the planet. it's what prevents us from being locked up and thrown into jail when we say things that are government officials don't like. and it is what allows us to assemble her here today to thiy debate about the contours of the

right. but while the first amendment guarantees a free press, which is a good thing, it does not guarantee a consequence free press, which is a bad thing. what the supreme court ultimately sanctioned, i press effectively immune for civil defamation liability, what it did when handed down the decision in new york times v. sullivan. so we've heard about this case, sullivan case. what did the supreme court say in it? it said, to prevail in in a cil case for libel defamation slander, a public official must show that the speaker acted with actual malice. those are key words, actual malice. and actual malice means is that the defendant speaker knew what he was writing her of what he s saying was false, or recklessly disregarded the truth or falsity of the statement. what does that reckless standard has been interpreted to mean as

the speaker had high degree of probability can do with a high degree of operability that what he was writing from of what hes saying was false. this is a subjective standard. this is what was in the mind of the speaker at the time he spoke. not what a reasonable person would know or reasonable person would understand based on available facts at the time. local courts have said about this actual malice standard can we heard about what justice thomas said, almost impossible. other courts have characterized it as heavy, often insurmountable burden, difficult task that extracts high price from the victim of defamatory falsehood, many deserving plaintiffs including some intentionally subjected injury will be unable to surmount the ferry of the "new york times" test. so where did the supreme court come up with this standard? it wasn't the first amendment.

there's simply nothing in the first amendment history, text or structure, that warrants the imposition of the sullivan actual malice standard. the constitutional basis for the sullivan decision is extremely suspect. arthur has spoken so eloquently today about how the history of some of our founders into thinking does not support the standards are not spent a lot of time on the the struggle argument. but let me spend a couple of minutes on the tactical structure of the constitution. the text of the first amendment says nothing about what standards must be applied in a civil defamation, civil libel case. it merely says that congress shall make no law abridging the freedom of the press to get doesn't talk to civil standards for what juries are supposed to find at all. what about the structure? is or anything in the structure of our constitution or in the bill of rights that suggest the actual malice standard is

appropriate? no. there are other rights and freedoms that are recognized in our constitution. there's the freedom from religion, the right to keep and bear arms, the right to counsel in certain circumstances. but nobody is arguing and it would be silly to argue that the clergy or that gun owner or that lawyer could not be held civilly liable for the wrongful action absent a showing malicious content or recklessness. because these rights, the right for religion, the right to keep and bear arms, are so fundamental to our society and to our constitutional order. no one is making the arguments like they are with respect to the press. so on the question of the constitutional soundness of the new york times s. sullivan decision, justice thomas recent occurrence in the cosby case was spot on.

sullivan was a policy-based decision untethered to the text structure history of the first amendment, the ninth unelected justices in the one court basically made up the actual malice standard imposing their own policy preferences about what the law should be in civil defamation cases. they substituted their own policy preferences for 200 plus years of state defamation common law. but we come to the law as we find it, new york times v. sullivan is the law of the land. it was, in fact, a policy-based decision so today we are here discussing as a policy matter whether the actual malice standard is sound and whether it is sound public policy. it's not. now, what gives me the right to sit appear and talk about this standard and what is good policy or not? i'm a practicing defamation lawyer. i'm a litigator who focuses on defamation cases. day in and day out i represent

my client who are being targeted by the media and i see firsthand how reporters do and often don't do their jobs. from gathering are not gathering facts to cultivating or sometimes fabricating sources, to making decisions about which sources to grant anonymity to and which targets the will publicly identify. these are the decisions that i see how the media grapple with on a daily basis. for me and especially for my clients the debate about sullivan is decidedly not theoretical here when it is splashed across the pages of the "washington post" and the "new york times" has a profound impact on reputation. it can and has destroyed lives. it can and has destroyed careers, and it can and has destroyed families.

this policy question has a profound impact on the right to one's reputation and the way that we protect it. so getting back to the actual malice dinner how does operate with my nine euros daughter was say how does it work in real life, mom? so the supreme court and lower courts have interpreted actual malice rarely say what actual malice is or what conduct constitute actual malice. instead the courts speak about what conduct does not constitute actual malice. so let's start there. a journalist total failure to investigate before publishing a negative allegation, not actual malice. the fact that a journalist was biased or even motivated by a desire to cause harm or has an economic or political motive, not actual malice. a failure to reach out to the

stories subject before publication to give him or her a chance to deny or comment on the story before publication, not actual malice. i failure to follow basic journalistic standards for ethics, not actual malice. the use of knowingly biased sources or anonymous sources, not actual malice. okay. that sounds kind of crazy. let's talk about then who this standard applies to, and given the courts have talked about how heavy a burden this is an virtually insurmountable standard applies to surely this must be a very set of people the actual mouse to applies to. new york times v. sullivan says it applies to public officials were okay, that makes sense, right? president trump, brett kavanaugh, they had their own access to media. they can call press conference

and rebut those negative allegations, right? i submit that this high-profile public officials are in a very, very rare defamation case. the supreme court has not done a very good job i defining who qualifies as a public official. that definition has been expanded beyond recognition. here's some of the other government employees that the lower court had said our public officials. a taxicab inspector for charlotte, north carolina, public official. a county engineer for allen county ohio, public official. a social worker employed by the alameda county social security agency, public official. the municipal building inspector for small city in connecticut, public official. the sheer number of citizens who work for our federal, state and local governments is enormous. now, if such as public officials

that actual malice standard applies to pick it's also public figures in this category that the court created called limited purpose public figures. this limited purpose public figure public safety category is comprised of the people who anything of a judge have thrust themselves into a public controversy, and thus made themselves public figures. this this is a category that's t ripe for abuse. judges strained to find people who come how that somehow enmeshed themselves in the controversy and judges define these controversies incredibly broadly. here are a few examples of people of been find this limited purpose public figures. the owner of an apartment building was considered a limited public figure because my own and a that he thrust himself into the public controversy concerning the rental housing arena. a professional belly dancer with

a limited purpose public figure because she welcome publicity regarding her performances. a female navy pilot, i love this one, , a female navy pilot was a limited purpose public figure with respect to the controversy about women in combat because she chose to be both a woman and a navy pilot. and this one that is near and dear to my heart, and associate dean at the university of virginia who has no policymaking authority, was a limited purpose public figure because she gave a single interview to a student journalism class as part of a student project. now, this case law on what constitutes a what does not constitute actual malice and who must satisfy the actual malice standard has real consequences. the result, most people in this

country are going to be considered a limited purpose public figure or a public official, 99% in libel cases will fail to satisfy the actual malice standard. under existing law today, a huge -- no remedy whatsoever if they are detained, regardless of how catastrophic the definition is -- defamation is or how much it hurts the reputation of the this is near blanket immunity for the press. let's be clear. media defense lawyers like my friend lee rely on it daily in counseling their clients. my good friend kate bolger come to quote her who's a lovely, lovely person and very talented and respected media defense lawyer was recently quoted as saying that she relies on the sullivan standard quote, every day of her life as a first amendment litigator and how she advises her clients.

it's not just in litigation that media defense lawyers rely on the actual malice standards it's how they advise their clients on republication conduct and review before these allegations, before stories are published. so the media after having been told that so long base of the anything goes, it's that journalism today, standards, have seriously eroded and basically anything goes. so what does the world look like where sullivan is overturned? is a doomsday for the press? would it be the end of our democratic republic because the press would be out of business? politicians and powerful along would be held accountable. no. hardly. let me give you two reasons why. first, the media is largely owned by large for-profit companies, many of whom are publicly traded, who are

rational actors who act in the own economic self interest. they are accountable to their shareholders and another dirty little secret, they are protected insurance from libel claims, including legal defense clause. and being held accountable to an insurer or your shareholders after being packed with the defamation verdict will make you stop and think before you write. but make you stop and actually do the investigation before you write. it will impose discipline on journalism and the press. returning, the second reason. returning to a pre-sullivan aramaeans the press is held accountable for negligent conduct. that's the standard. negligent conduct applied before sullivan was handed down. this is the same standard that any other professional class is held to, doctors, lawyers, accountants, pilots doctors next

and how he performs a surgery, that patient can and should sue embassy damages for injury that doctor caused. now, negligence is not a nothing standard. it simply means that whether, you held accountable if you fail to take reasonable care, or if you created an unreasonable risk. so in practice going back to the negligence standard, journalists would have, they would have a duty to investigate before publishing. they would have to follow professional standards and adhere to a code of ethics. they would have to reach out to target for, before publishing. they wouldn't be permitted to blindly rely on what others have said in just repeating those claims in the press. they would make more limited use of anonymous or buys sourcing, and at minimum they would disclose those biases in the

recording. -- reported. it have to make an affirmative decision of whether the rush to be first is more important than actually getting it right. aren't these good things? there's one recent example where i think that rolling back the sullivan standard would have made a difference. just last month the "new york times" breathlessly reported that there were new sexual misconduct allegations that have emerged about brett kavanaugh's time at yale. yet, if the times the initial reporting, mortgage on the "new york times" because lee represents the "new york times", yet in the near times initial reporting on this topic, the paper record completely omitted the fact that the women were supposedly the victim doesn't even remember the incident, and that she declined to be interviewed on this reporting for this topic.

that was a serious lapse of journalistic standard to omit these important facts that would have given readers a more fulsome perspective on the allegations themselves. and done pre-sullivan work i suspect he would not have been a admitted. i want it respectively back to the original question of the panel, should the press be restrained? yikes. what a loaded question, restrained harkins of these images of reporters in handcuffs. let me be clear, i'm not in favor of imposing criminal liability for defamation. [inaudible] >> that's not off the record. should the press be restrained also raise another important question, restrained by whom? so i don't really love the way that question is framed but let me answer it this way speakers we wanted a big turnout in our

defense. [laughing] >> i do believe press accountability is incredibly important, here a free responsible press is vital to our democratic republic. it's vital to informed electorate. a responsible press is one that is self-restraint. rational actors behave in a way to avoid negative consequences, both social and economic. the press has run amok due in no small part to the fact that there is still consequences for misconduct. trust and confidence in the press is at an all-time low. the specter of real civil liability with real economic damages, if those lawyers like lee and my friend kate in the confines of their attorney-client privilege conversations with your clients told their clients slow down, take more time, there's real economic risk here, that would

be a good thing for everyone. it's good for the media because it creates more accurate coverage which in turn creates greater trust and faith in the press by the people. it becomes much harder to dismiss the media with a hashtag like fake news. overturning sullivan creates a more self restrained press, a more responsible press, and yes, a free press, not the consequence free press that the supreme court has left us with in the wake of new york times v. sullivan. thank you. [applause] >> good afternoon. i speak you today operating under a number of disadvantages. [laughing] first, isis affected many of you have already made up your mind on the question we are debating, should the press be restrained and i'm facing an uphill battle to convince you that it should

not, at least any further than it already is. second, although i speak last today my remarks were of necessity drafted before i was made free to what they're going to save it save it as a result what i offer my general perspective on the issue, please forgive me if in doing so i do not respond directly to one or another of their arguments. in a limited time i have i'd like to emphasize three points. one about history, one about reality, and what about constitutional law. i'd like to do so largely by invoking the words and insights of others, words and insights with which i happen to agree. first, history. arthur has it come i suspected he would come that a great deal about history invoking the writings of the famous especially franklin to the effect that the press was irresponsible to be restrained by among other things libel lost her i don't deny such writings exist. the framers were above all else

politicians and i'm not aware of a single politician who doesn't think the press ought to be restrained when it is critical of him, just as i'm unaware of a politician who doesn't shaping the freedom of the press to criticize her opponents. to the extent history matters, and i will shortly say a few words about the extent to which it should, i commend you the following rendition of what i submit is a history most relevant to the question for us. that is, the lesson to be drawn from the great controversy over this sedition act of 1798 which first crystallize the national awareness of the sentiment of the first amendment. that statute made it a crime punishable by a $5000 fine and five years in prison, and a quote, if any person shall write print or under a publishing false malicious writing a writings against the government of the united states or either house of the congress or the president with intent to defame or to bring them or either of them into contempt or disrepute.

the act was vigorously condemned as unconstitutional and an attack joint in my jefferson and madison. their premise was the constitution created a form of government under which the people, not the government, has the absolute sovereignty. in a debate in the house of representatives madison said if we advert to the nature of republican government, we shall find the powers in the people of the government and not in the government over the people. of the exercise of that power by the press, he said, in every state, be in the union the press is exerted a freedom in canvassing the merits and measures of public men of every description which has not been confined to the strict limits of the common law. on this footing the freedom of the press has stood, and on this foundation it yet stands. although this addition act was never tested in the supreme court -- sedition act, the attack on his validity carried the day. fines levied in prosecution were repaid by acts of cards on the

ground it was unconstitutional. calhoun reporting to the sympathetic with fourth, 1836, assumed its invalidity was a matter at a quote which no one now doubts. jefferson as president pardon those have been convicted and sentenced under the act and remitted device. stating i discharge any person under punishment or prosecution under the sedition law because i consider and now and not consie law to be unloaded as absolute and powerful as if congress had ordered us to fall the and worship a golden image. these views reflect a broad consensus that the act, because of the restraint imposed upon criticism of government and public officials, was inconsistent of the first amendment and there is no force in the argument that the constitutional limits in place in history of the sedition act apply only to congress and not to the states. it is true that the first amendment was originally addressed only to action by the federal government and at jefferson for one while denying the power of congress to control

the freedom of the press recognize such a power in the states. but this distinction was limited with adoption of the 14th amendment and application to the states of the first amendment restrictions. those words if you and if you have probably recognized, were written at justice william j brennan junior for unanimous supreme court in new york times v. sullivan. they remain in my judgment and accurate the some of the relevant constitutional history today as it did when he wrote them more than 50 years ago. next i'd like to say word about reality. libby has as i suspect that she would know to mitigate against each other for a very long time, painted for you a picture of an irresponsible and all-powerful press. see, i knew it she was going to say. [laughing] i respectfully dissent from that view. from my perspective we live as we often do in perilous times. times in which the importance of

a free press is a spirit as was once madison drafted drafted the first back in the sedition act. allow me to endorse the perspective of another intemperate observer. let me start by stating the obvious, the media are not perfect. it makes mistakes. it has blind spots to it sometimes drives people crazy. but the free press is foundational to a healthy democracy and arguably the most important tool we have as citizens. it empowers the public by providing the information we need to elect leaders and the continuing oversight to keep them honest. it bears witness to our moments of tragedy and triumph, and provides the shared baseline of common facts and information that bind communities together. president trump has tweeted about fake news nearly 600 times. his most frequent targets are independent news organizations with a deep commitment for reporting fairly and accurately. to be absolutely clear, news

organizations are fair game for criticism. journalism is a human enterprise and journalists make mistakes. but at least in my experience that journalists and news organizations i've been privileged to represent also try to own their mistakes, to correct them and to rededicate themselves to the highest standards of journalism. but when the president decries fake news, he's not interested in actual mistakes. he's trying to legitimize -- delegitimize real news, dismissing factual and fair reporting as politically motivated fabrications. so when the "new york times" reveals his sales financial practices, when the "wall street journal" reveals money paid to a porn star come when what you post reveals his personal foundation dealing, he can cite that the county by sibley dismissing the reports as fake news. even though all of those stories and countless more that he is laid -- labeled falls have been confirmed as accurate, there is evidence that his attacks are

achieving their intended effect. those are the words of the publisher of the new times, words with which i wholeheartedly agree. i'd like to focus briefly on one of those intended effects, and that is the response of the president's campaign to open up the libel laws, which is the foregoing to be honest with each other, what brings us here today. i've been litigating libel case it for 40 years, and from i sit, public officials and other powerful public figures are now instituting libel actions against the press in an unprecedented and equally troubling rate. the passenger of those cases have been brought not to secure a compensation for actual injury to reputation but rather to punish the press for "speaking truth to power" and to dissuade it from doing so in the future. less than pay the price of birds and enormous expense of litigation, regardless of the merits. many of these cases are funded not by the allegedly aggrieved

plaintiff but by wealthy individuals and institutions with ideological political access to grind and scores to settle. that at least this contemporary reality that i see and it ought to concern all of us. which brings me to my last point and that is constitutional law. at the end of the day what we're debating is what the first amendment did in the constitution means and answer to that question, unless you're prepared to overrule marbury v. madison is a job of judges including ultimately the justices of the supreme court. allow me one last time to book the words of another this time i distinguished federal judge who has spoken to the issue specifically in the context of the law of defamation. we face today a freshening stream of libel actions which often seem as much decide to punish writers and publications as to recover damages for real injuries. actions that may threaten the public and constitutional interest in free and frequently

rough discussion. those who step into areas of public dispute which use the pleasure and distractions of controversy must be willing to bear criticism, disparagement and even wounding assessments. perhaps it would be better if it were conducted in measured phrases and calibrate assessments and with strict avoidance of the ad hominem. better that is if the opinion editorial pages of the public press are modeled on the federalist papers. but that is not the world in which we live, ever have lent, or are ever likely to know. and the law of the first amendment must not try to make public dispute safe and comfortable for all the participants. that would only stifle the debate. the american press is extraordinarily free and vigorous, as a should be. it should be not because it is free of inaccuracy, oversimplification and bias but because the alternative to that freedom is worse than those failings.

judges given stewardship of the constitutional provision such as the first amendment whose core is no budget how to reach and contours are ill-defined face the never ending task of discerning the meaning of the provision from one case to the next. that would be little need for judges and certainly the office for judging if the boundaries of every constitutional provision were self-evident. they are not. it is a a task of the judge in this generation to discern how the framers values defined in the context of the world they knew apply to the world we know. so it is with defamation. we know very little of the precise intentions of the framers and ratifiers of the speech and press laws of the first amendment, but we do know they get onto our keeping the value of preserving free expression, and in particular the preservation of political expression which is commonly considered to be the value at the core of those clauses. perhaps the framers did not envision libel action as as a r threat to the freedom. i regret that for the sake of

the point to be made, but if overtime the libel action becomes a threat to the central meaning of the first amendment, why should that judges adapt their doctrines? why is it different to remind -- next to become to refine and involve doctrine here so long as when it is faithful to the basic meaning of the amendment bandages to adapt the fourth amendment to take account of electronic surveillance, the commerce clause to address interstate motor carriage? i do not believe there is a difference. we must never hesitate to apply all dollars to new circumstances, whether those circumstances are changes in technology or changes in the impact of traditional common-law actions. sullivan was an instant of the supreme court doing precisely this, as brown v. the board of education was more generally an example of the court upon an old

principle according to a new understanding of a social situation. the important thing, the ultimate consideration is the constitutional freedom that is given into our keeping. a judge refuses to see new threads to an established constitutional value and hence provides an interpretation of the route the provision of its full, fair and reasonable meaning failed in his judicial duty. that duty i repeat is to ensure that the powers and freedoms specified are made effective in today's circumstances. the evolution of doctrine to accomplish that contravenes no principle of judicial restraint. we now face similar to that which courts have met in the past -- pastures remarkable upsurge in libel actions attempted by inflation of damage awards has threatened to impose self-censorship on the press which can effectively inhibit debate and criticism as would over government migration that the first amendment will certainly would not permit.

the only solution to the problem libel actions pose would appear to be close judicial scrutiny to ensure that cases about types of speech and writing are essential to a vigorous person and do not reach the jury. those of the words of the late judge robert bork come himself no stranger to wounding press scrutiny. they are as true today as when he wrote the more than 25 years ago. i commend them to you. thank you. [applause] >> before we opened it up for questions from the audience, would any of the participants care to respond to any of the other participants? >> i would like to ask tragic if he could introduce me to some of those litigations? [laughing] >> i don't know them personally. >> lee makes a point there's

this vast expansion of libel cases out there that are being funded by nefarious dark money, and i'm not aware of them and i would just like to be introduced to them. [laughing] >> this gentleman from the front. please keep your questions free so we can get to as many of them. please wait for the mic. yes. >> thanks. having heard lee describe and upsurge in this activity against the press and for example, libel points, it sounds like even without a change in the law from a legislature or the supreme court, consequences are being introduced to the press, and thus the state at play here is moving in a good direction. perhaps even maybe in bed by

favorable decision where judges did not overextend the definition of limited public figure. do you think that's true? is this moving natural and a good direction or are things getting worse, so to speak, with respect to the alleged problem of the consequence free press? >> i think things are moving in that direction, and because of that i think they are getting worse. my problem with sullivan, which is kind of the mirror image of liberties problem with sullivan is that i don't think it provides enough protection because it operates at the wrong end of the litigation process. it's a subjective inquiry that often calls for very extensive and time-consuming and expensive discovery and then a trial, which even if the press wins it's already been penalized for the expression by the burdens of expensive litigation.

i think this phenomenon is terribly troubling, and is already having an inhibiting effect on the press. but libby disagrees and she'll tell you what. >> i'd use it disagree and i think one of the positive consequences of overturning sullivan, if that were to be done, is that it would open up more access to the court system. and here's the reason being, libel cases are notoriously difficult to win. if you'd ask lee how many cases he sees defamation cases actually get beyond a motion to dismiss, that very initial filing for a cases thrown out under rule 12 of the federal rules, very few. very few cases actually get into discovery, those that do are often throughout on summary judgment. opening up access to the court by overturning sullivan, how you

get there is that if cases are notoriously hard to win and there aren't a lot of lawyers are willing to take on, especially on a contingency fee basis. they don't lend themselves easily to figuring out on the front and what damage awards like to be one of the risk taking on the case is worthwhile. ..

and so the notion that the press is going to be completely inundated in an economic way or iscurrently being inundated in an economic way, i don't see that . compare it to the real damage that defamation causes the families livelihoods. everyone loves free press and a consequencefree press when the camera is not pointed at them . it's easy to be a huge supporter of press freedom when you haven't actually felt that pain. >> lydia. >> ellie shapiro. >> lydia, i'm wondering whether to get what, to

address the problems you noted whether it's necessary to overturn sullivan or to have a standard that includes negligence and recklessness or failure to follow up standard of care into other professional tort claims as well as making sure the public figures are actually public figures. all those elements in sullivan may be just that if the supreme court were to take this up and you would say we need these things in here is what they mean rather than the whole structure being improper. >> that's a great question. i go back to my remarks in my talk. as a constitutional matter i don't think there is a constitutional basis for the sullivan decision as it was laid out. a big policy matter, therefore we end up in what is necessary necessarily a policy debate.

let's be clear about what this is. this is a policy debate over whether the outcome is good or bad so if you want more judges doing morepolicy, yes, you can hold back on certain threads . they can define who a public figure is more narrowly . they can pull back on the limited purpose public figure definition much more substantially so you can certainly do that but it's be clear, that would be judicial policymaking, not judges following constitutional law. >> you get the last question because we need to adjourn. >> i have a question for lead. two-part question, this is a policy debate. if it were up to you you think it's a good to eliminate libel laws altogether in the united states number one and 2, you think every would-be information plaintiff should have to show the actual malice standard the publisher disregarded thefalsity of the

statement ? >> very good statement. no i don't think we should do away with libel law entirely and this gives me a not terribly sketchbook to respond tosomething lee just said . in one sense this is a policy argument and in one sense it's not. there are remarks i quoted from judge bork. we all know the first amendment protects speech. we have to define what speech is and early on the court said speech doesn't include libel so that's why we can ask libel laws though it becomes what is libel? and what the supreme court has done in sullivan and in the cases that came after it is what judges do, do they make a reason constitutional determination about what for constitutional purposes these terms should be defined as and when they're talking about public figures, justice

brennan ultimately said and use these words, what you got the malice standard was was distinguishing the calculated falsehood, the intentional lie on the one hand which has no business being protected by the first amendment even against public officials and speech that the press did not have an awareness was probably false for anybody, not just the press did not have an awareness was false when they published it which should be detected against public officials. i agree with that and that's my answer to the first question and the second question is again, the courts have drawn a line between public figuresand public officials on the one hand and everybody else on the other hand . i think reasonable people can differ about where that line needs to be drawn that's what judges are therefore to draw it and the supreme court has decided that on one side of the line of private figure

only has to prove negligence. i agree with that. libby said earlier in her remarks, there's one little hint. at before sullivan was a negligence standard. that's not true. porcelain there was no negligence , definition was liability so in the case the supreme court went a pair measured in saying even public figures, even private figures have to brew some level of full and uncomfortable with that. >> i'm sorry to cut short we have to adjourn. please join me in thankingthe panelists . [applause] >>.

>>. [inaudible] >>. >> weeknights this week we are featuring both the programs showcasing was available every weekend on

cspan2. tonight became his memoirs supreme court associate justice neil horses reflects on the 30 year career and offers his thoughts on the judiciary and u.s. constitution. the civilian attorney norma, a harvard law school graduate has been blind since birth thoughts about navigating through a site dreamworld and a supreme court justice they are disparate recounts are like time on the high court. watch tonight beginning at 8 pm eastern on cspan2 and enjoy the this week and every weekend on cspan2. >> saturday at 2:30 p.m. eastern on american history cd, instant lord of kissinger on kissinger on president nixon's relationship with his secretary of statehenry kissinger . >> nixon had read kissinger's books. one on foreign policy where he was so interested in this

but we knew then that we needed to have a national security advisor. >> and then. >> there was little to do except work in real life he brought it in the area here is such a setting. they prepared the search for oil. >> unreal america in the 1948 filled desert venture on the origins of the saudi arabian oil industry and at 6 pm eastern on american artifacts , we will review the votes for women exhibit at the smithsonian's gallery. >> i had time to study her ownbusiness as a laundry anchor . she advocated for big life which for sex outside of marriage. >> at 6:30 p.m. author sophia rosenfeld discusses her book democracy in truth: a short history. >> no one person, no one

institution, no one sector, no came, priests, national research body, specific cash we get to call all the shots. >> explore our nation fast on american history tv every weekend on c-span3. >> sunday on q&a, the smithsonian institution clearly whole on the history of terrorists and managing the us economy. >> the supreme court ruled that a tomato is indexable, not a proof because of a terrorist . it's an odd story. any botanist would tell you a tomato is approved but in fact , the 83 terry on vegetables and not felt an importer of vegetables, makes

new york pointed out that the tomatoes that he was bringing from the caribbean work fruits and he didn't have to pay a read the battle went on forquite some time . and eventually the supreme court ruled that tomatoes were festivals. and it is an interesting ruling in that it had repercussions beyond just tomatoes themselves. >> sunday at eight eastern on q&a. >> next medical practitioners and health officials examine the current challenges in research and innovation and women researchers discuss some of the professional challenges they encountered because of their gender. the health research forum hosted this event . >> now, it's a special privilege and i tell you this feels good to be kicking off ourfirst panel .