of people and how that has as much to do with the lack of diversity. >> watch booktv every weekend on c-span2. >> watch the c-span networks live next week as the house intelligence committee holds the first public impeachment hearings. the committee led by chairman adam schiff will hear from three state department officials starting wednesday at 10 a.m. eastern on c-span3, top u.s. diplomat in ukraine and deputy assistant secretary of state will testify. then on friday at 11 a.m. eastern on c-span2 former u.s. ambassador to ukraine marie yovanovitch will appear before the committee. follow the impeachment inquiry live on the c-span networks online at c-span.org or listen live with a free c-span radio app. >> and discussion whether libel laws should be changed.

the heritage foundation hosted this event where panelists debated the pros and cons of existing laws. >> good afternoon. my name is david azerrad, director of the simon center principles and politics and the family foundation fellow here at the heritage foundation. it's my pleasure to welcome you to the heritage foundation for this panel discussion. the freedom of the press as all americans know is enshrined in the first amendment. a free press is a necessary component of republican self-government and a hallmark of a free society. that is not in question. in fact, it's a 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 in a in journalism. the prez, in other words, is

itself subject to free speech just like everyone else is. journalists do not take well to criticism and i say this as 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 like all freedoms is not without limits. there are no prior restraints on publication. those days are thankfully slunk 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 limbic supreme court ruling of new york times v. sullivan, the supreme court considerably raise the burden of

proof to public officials who were seeking damages for libel to the standard of actual malice. this standard has integrated the press near blanket immunity, and thus considerably expanded its powers. just as clarence thomas has recently expressed interest in revisiting the standard court articulated in sullivan, he described that standard as, quote, almost impossible to satisfy. today, we take up the question implicitly raised by justice clarence thomas. do the present limits placed on the press serve the common good? we have assembled a distinguished panel to discuss and debate the matter, because at the heritage foundation we like to have debates on these difficult and contentious questions. speaking first will be my colleague, arthur milikh. arthur is the associate director

of the simon center 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 to the public at large and public officials in washington. he is written in a variety of 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 a few years ago. it's excellent. arthur would be followed by elizabeth locke who argue against the sullivan really. she is a highly accomplished defamation lawyer and litigator who devotes a practice to representing clients were facing high-profile reputational attacks. in the courtroom, she was lead trial counsel for defamation action against rolling stone magazine in which she secured a $3 million jury verdict for the false and death motoric arbitrary about an alleged gang rape at the university of

virginia. outside the courtroom, some of her biggest defamation wins our stores the public will never hear about. she has killed flawed articles, storylines and broadcast segments at outlets including the near 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 rolling. he has represented media clients in various first amendment cases for more than 35 years. he has twice argued for me defendants before the supreme court, litigator in the course of more than 20 states and the district of columbia and appeared in most federal appeals court and to the highest court of ten states. chambers usa called end quote, the greatest first amendment attorney and the united states. and with that please join me in welcoming our panel. [applause]

>> and 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 governor. you cannot have political liberty. it's not a free press. but contain in its principle is a corrosive side. the press even the past several years is driving people away from it. in creating great distrust it loses its salutary effect on society. the 2016 president election, for example, was a a shocking momet in which many americans witnessed much of the press to all in its power to select a president on behalf of the american people. these actions disclose the tacit opinion that the process of itself not merely the fourth estate but the greater of would-be rulers and, therefore, themselves a master 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 they are gone even criticism. this is part of the recent the press hates president trump so much. he questions the motives and accuracy. today there are considerable fewer restraints on the press unlikely anytime 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 since a shame to prevent the spread falsehoods or irresponsible reporting. this afternoon i would like to limit myself to discussing the observation of two penetrating figures, range when franklin and alexis de tocqueville who could help us understand our current circumstances. i don't do this for antiquarian or merely scholarly reasons. they saw with great clarity but the good and the ill that comes from the freedom of the press. the develop our analysis we should take a step back look at the presses original purpose. the press is meant to attack dartmouth in both science and

politics here we might first recall the freedom of the press does not refer to the news media alone. also means the publication of science and circulation and this is arguably the most successful element of the freedom of the press. so successful in fact, it's been forgotten. the second purpose and benefits is what we all already have in mind which is attacking dogmas in politics. this means a free press would defend political liberty against its enemies like tyranny, monarchy and slavery. the popular press or the news media as a call today would have an essential role in preserving our form of government. it was compelled the responsibility of government to serve the public faithfully by visually guarding against corruption and abuses. de tocqueville goes even further. picky says newspapers not only guard freedom but they maintain civilization. even the press doesn't speak so highly of itself. newspapers bring together local community health rule themselves

politically. it simply can't happen without newspapers. as we already know, very much is at stake in having a good press. the press as was understood by the founders is motivated to act viciously, attack falls political dogma and uncovering corruption for the sake of preserving republican government. this is good. but just like the pressures compel government to be responsible, so did some loss compel the press responsible itself. so that's the good. here's the bad. neither franklin nor de tocqueville were naïve about the possible that affect of the press and, in fact, predicted many of them. as de tocqueville says he loved the freedom of the press dash man putting him -- out of consideration for the eagles it prevents, much more than for the good it does. franklin agrees, and no american fed had more experience in the press than him.

he became a multimillionaire through the press and he spent his entire career in it. i want to lay out for you in broad terms, franklin's critique. critique. first, franklin observes the press often -- the press often attempts to imitate the dignity and the procedures of a a courf law. it holds mock trials come passes judgment, sentences, holds mock executions and condemns people to infamy. it does all this on its own discretion by picking and choosing its own causes and enemies. it does this mainly by -- on coding him -- receiving and promulgating accusations from which they can condemn anyone. they can condemn both public and private individuals and institutions but while imitates a court of law, unlike the court it is not limited by a jurisdiction. it has a roaming jurisdiction. nor is it restrained by any 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 presses accusations know if there is wearing to the truth by the accusers. instead anonymous unverified statements are sufficient to move public opinion. and if they prove false, these individuals go unpunished. nor is the accused reputation ever fully restored. in conducting these mock trials, the press has a a remarkable pr 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 the same morning judged and condemned and sentenced pronounced against him that he is a rogue and a villain. 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 the inquisition could, but it can intimidate you. and in doing this it can compel belief all while claiming to persuade your reason. franklin sees in this pilot the capacity to crush the voice of reason in citizen, making them browbeaten and partisan. the freedom of the press in an odd wickedly to the unfreedom of the mind for franklin. given these massive powers, franklin is interested in figuring out who composes this class are jealous. we should remember at the time this was a new human type image of turkey said 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 for jews so let's say their education, the prudence, their intellectual abilities. or in some cases the position was inherited and, therefore, tradition or honor would restrain them. when the press is open to anyone it will often attract a certain type and here franklin cheekily

observed this type is the one in 500 who have the privilege of accusing and accusing the other 489 parts at their pleasure. he fears this class may attract individuals animated by this desire. surely there will be those like franklin himself who care about the public good, but what he fears is distant attitude and its secret motive will unify a new class which will hold too much sway over society. yet despite these abuses the press continues to have enormous power. that's because there's a natural support in it, , in us. and that is human resentment. the publix taste for destroying any militating others. according, the press appeals especially -- humiliating -- for those who desire to spit into a araiza distinction by their virtues or happy if others can be depressed to level of

themselves. the press loves exposing private vices for the satisfaction of the public appetite for such things. it flatters the public by saint look at these people. they are greedy, ruthless, immoral. you can look down on them while pretending you are nothing like them. today the press even says your president is merely insane and mentally unhinged. he is certainly not a very stable genius. [laughing] thus, emerges a coterminous relationship of mutual dependence. underwent the press wants to rule the public mind, on the other hand, the public about this because of its desire to be flattered for its jealousy is to be satisfied while being grateful that the press doesn't target them. and here is worth de tocqueville picks up the thread. he's astonished that while america is so free, so stable, so prosperous, unlike his home country of 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 wrote in the markers in america which i i suspect he invented. but it's exemplary. he says this is from a local newspaper. in all this affair, the language hell to buy president jackson has been that of a heartless despot, occupied solely with preserving his power. ambition as a committee will find his penalty in it. his intrigue for vocation and intrigue will confound his designs and rest his power from it. he governs by corruption and his guilty maneuvers will turn to his confusion and shame. the hour of justice approaches. soon he will have to get back what he has one to repent not a virtue he is ever given to start to know. this could've been written yesterday.

[laughing] but we should pay very special close attention when tocqueville is examples like this especially when he invents them. what this little quotes as is that president jackson stands too tall, vis-à-vis the press. he must repent as they are the only confessor. into many this the press pretends to will for the sake of the people but it agitates him ceaselessly and is willing, to alter anti-nature the facts for the sake of its own significance. what moderated this power was that america was a decentralized nation. in the america de tocqueville, he says that a more local associations and newspapers anywhere on earth. that's because the more a free people administers its own affairs locally, the more newspapers are necessary for them to govern themselves. tocqueville said america was fragmented which it is a it's not really centralized america.

when people is to become tocqueville thought the press could you are what he calls individualism through newspapers. picked this up at the rugged individualism we often extol. rather come he means increasing isolation and weakness of citizens such that their world almost solely by public opinion and eventually a basque state. his lesson is of this, the more numerous our newspapers, the healthier society. but tocqueville warns the more centralized patient, if you are the newspapers. in fact, the decentralization of newspapers prevents the unity of the press from unifying as a class unto itself and ruling the nation. but looking at france at this time he fears the can even develop a unity between the press as a whole and the political party. as he says of france, under these conditions the power of the press will be quote, almost without balance. 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 scan at some point come to a tacit agreement unify among themselves as they nearly did in their run-up to the 2016 election. but thank goodness for the internet. a few words to conclude. for tocqueville, , moderating te abuses of the press means more newspapers, or in our time, the internet. regrettably, there is a movement to shut down the freedom of speech on the internet which contains many news outlets that counterbalance the power of the united press. returning to franklin, he has two solutions. he thinks the public should be wary of the press' desire to rule it, and he thinks one way to moderate this is through satire, to criticism and satire of the press. and you see this today. with so many movies exposing the military, the church, whatever other institution, as corrupt. there's never been a movie about the press.

they are always heroes saving the republic. finally, franklin thinks that laws like we have 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 on such a distinguished panel, especially to arthur and david and john malcolm pics on here today to argue against the new york times v. sullivan standard, but let me start by saying this. i'm not someone who dislikes free-speech. to the contrary. the first amendment is to be celebrated. it's what separates our great

nation from most other countries on the planet. it's what prevents us from being locked up, thrown into jail when we say things that our government officials don't like. and it's what allows us to assemble here today to have this very debate about the contours of that 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, a press s effectively immune from civil defamation liability, what it did when it handed down the decision in new york times v. sullivan. referred about this case, the sullivan case. what did the supreme court say in it? it said, to prevail in the civil case for libel, , defamation, slander, a public official must show the speaker acted with actual malice.

those are keywords, actual malice. and what actual malice means is the defendant speaker knew what he was writing from when he was saying was false, or recklessly disregard the truth or falsity of the statement. what does that reckless standard has been interpreted to mean as the speaker had a high degree of probability, and knew with a high degree of probability that when he was writing for what he was 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 what a reasonable person would understand based on the available facts and evidence at the time. lower courts have said about this actual malice data, we heard about what justice thomas said, almost impossible. other courts have characterized it as a heavy, often insurmountable burden, a difficult task that extracts high price from the victim of

defamatory falsehood, many deserving plaintiffs including some intentionally subjected to injury will be able to surmount the barrier 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 soul of an 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 and the thinking does not support the standard so not spent a lot of time on the historical arguments. but let me spend a couple of minutes on the structure of the constitution. the text of the first amendment says nothing about what standards must be applied in ia civil defamation, civil libel

case it merely says that congress shall make no law abridging the freedom of the press. it doesn't talk about civil standards are what juries are supposed to find at all. what about the structure? isn't anything in the structure of our constitution or in the bill of rights that suggests the actual malice standard is appropriate? no. there are other rights and freedoms that are recognize in our constitution. there's the freedom to religion, the right to keep and bear arms, the right to counsel in certain circumstances, that nobody is arguing and it would be silly to argue that the clergy or that gun owners or that lawyers could not be held civilly liable for the wrongful action absent a showing of malicious intent or recklessness because these rights, the right to religion, the right to keep and bear arms, are so fundamental to our

society into our constitutional order. no one is making his arguments like the art with respect to the press. so on the question of the constitutional soundness of the new york times v. sullivan decision, justice thomas' recent concurrence in the cosby case was spot on. sullivan was a policy-based decision untethered to the text structure of history of the first amendment, the nine unelected justices in the warren court basically made up the actual malice standard in posing their own policy preferences about what the law should be in civil defamation cases. and they substituted their own policy preferences for 200+ years of state defamation common law. but we come to the law as we find it in new york times v. sullivan is the law of the land. it was effective policy based decision certainly where here's discussing 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 and talk about this standard and why it 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 serving -- or targeted by the media, and i see first in a reporters do and often don't do their jobs. from gathering or not gathering facts, to cultivating or sometimes fabricating sources to making decisions about which sources to grant anonymity to, and which targets the glitter 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. what a splash 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 aussie question has a profound impact on the right to one's reputation and the way we protect it. so getting back to the actual malice standard, how does it operate? i nine-year-old daughter would succumb how does it work in real life, mom? so the supreme court and lower court have interpreted actual malice rarely say what actual malice is or what conduct constitutes 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 for publishing -- before publishing and negative allegation, not malice. the fact that a journalist is biased or even motivated by a desire to cause harm or has an economic or political motive, not actual malice. and 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. a failure to follow basic journalistic standards or 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 come surely this must be a very narrow set of standards the actual malice standard applies to. new york versus sullivan says applies to public officials. they can call press conference and rebut those negative allegations, right? well, i submit those high profile public officials when a very, very rare defamation case. the supreme court is not done a very good job of defining who qualifies as a public official. that definition has been expanded beyond recognition. here's some of the of the government employees that the lower courts had said public officials. a taxicab inspector for charlotte, north carolina,, public official. the county engineer for allen county, ohio, public official. a social worker employed by the

alameda county social security agency, look official. a municipal building inspector for a small city in connecticut, public official. a 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 its also public figures and this category agreed -- created. this limited purpose public figure category comprises of people who independent of a judge have thrust themselves into a public controversy and thus made themselves public figures. this is a category that is most ripe for abuse. judges strained to find people, how they have somehow enmeshed themselves in the controversy, and judges to find these controversies incredibly broadly. here are a few examples of

people who have been defined as limited purpose public figures. the owner of an apartment building was considered a limited purpose public figure because by owning an apartment building, 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 women in combat because she chose to be both a woman and a navy pilot. [laughing] and this one that is near and dear to my heart come 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 constitute a what does that constitute actual malice and you must satisfy the actual malice standard has real consequences. a result, most people in this country are going to be considered a limited public official in 90% of libel cases who fail to satisfy the actual malice standard. under existing law today a huge swath of our citizenry has no remedy whatsoever if they are defamed, regardless of how catastrophic the defamation is or how much it hurts their reputation. this is near blanket immunity for the press. and let's be clear. mediate defense lawyers like my friend lee rely on it daily in counseling their clients. my good friend kate bolger, to

quote or who is 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 standard. it's how they advise their clients on prepublication conduct review before these allegations, before stories are published. for the media after having been told by their lawyers so long to basically anything goes, it's not surprising that journalism today standards have seriously eroded and basically anything goes. so what does the world look like where sullivan is overturned? is it doomsday for the press? would it be the end of our democratic republic because the

press would be out of business, politicians and powerful with no longer 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, our rational actors who act in their own economic self interest. they are accountable to their shareholders, and another dirty little secret, they are protected by insurance from libel claims, including legal defense costs. and being held accountable to an insurer or your shareholders after being tagged with the defamation verdict will make you stop and think before you write. it will make you stop and actually do the investigation before you write. it will impose discipline on journalists and the press. and the second reason, returning to a pre-sullivan era means means the press is held

accountable for negligent conduct. that's standard. negligent conduct that is applied before sullivan was handed down. this is the same standard that any of the professional class is held to, , doctors, lawyers, accountants, pilots. if the doctor is negligent in how he performed surgery, that patient can and should sue and receive damages to injuries 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 a duty to investigate before publishing. they would have to follow professional standards and the deer to a code of ethics. they would have to reach out to their target for comment before

actually publishing -- and adhere -- they would not blindly rely what others have said and just repeating those claims in the press. they would make more limited use of anonymous or buys sourcing, and that minimum they would disclose those biases in their reporting. and there would have to make an affirmative decision whether rush to be first is more important than actually getting it right. are not these good things? there's one recent example 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 in the misreporting, emily pickett on the nuke times because lee represents the "new

york times," yet in the initial reporting on this topic of the paper record completely omitted the fact that the woman who was supposedly the victim of this misconduct doesn't even remember the incident, and that she declined to be interviewed on this recording, this topic. that was a serious lapse of journalistic standards to omit these important facts that would have given readers a more full some perspective on the allegations themselves. and under pre-sullivan world i suspect it would not have been omitted. so i want to finish today by coming back to the original question to the panel, should the press be restrained? yikes, what a loaded question. restrained harkins of these ridges of reporters in handcuffs. and let me be clear. i am not in favor of imposing criminal liability for defamation.

you can quote me, that's not off the record. [laughing] shut the press be restrained also raises another important question, restrained by whom? i don't really love the way that question is framed but let me answer it this way speedy we wanted a big turnout in our defense. [laughing] >> i do believe press accountability is incredibly important, a free but responsible press is vital to our democratic republic. it's vital to an informed electorate. responsible press is one that is self restrained. rational actors hate it away to avoid negative consequences, both social and economic. the press runs amok due in no small part to the fact that there is zero 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 the and my friend kate in the confines of the attorney-client privilege conversations with their clients, told their clients slow down, take more time, there's real economic riskier. 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 of the press by the people. and it becomes much harder to dismiss the media with the 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 to did it operating under a number of disadvantages. [laughing] first, i suspect 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 are of necessity drafted before i was made privy to exactly what either libby or arthur was good to say. as a result while i will offer my general perceptions on the issue, please forgive me if injuries i do not respond directly to one or another of their arguments. in a limited time i have i would like to emphasize three points. one about history, one about reality, and what about constitutional law. i would like to do so largely by invoking the words and insights of others in words and insights of which i happen to agree. first, history.

arthur has as i suspected he would set a great deal about history in both the writings of the framers especially franklin to the effect that the press is time to present this time was irresponsible out to be restrained by levels. i don't deny such writings exist. the frames were above all else politicians and i'm not aware of the single politician who doesn't think the press ought to be restrained when it is critical of him come just as i'm unaware of the politician who doesn't shape in 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 the history most relevant to the question before 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 essential meaning of the first minute. that statute made it a a crime punishable by a $5000 fine and

five years in prison and i quote if any person shall write print or under a a publish any false scandals and malicious writing against the government of the united states or in the house of or the press intend to defend or to bring them or either of them into contempt for disrepute. their premise was the constitution created a form of government under which the people, not the government assess 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 over the government and not in the government over the people. of the exercise that power by the press he says, in every state probably in the union, the press has exerted a feeding in canvassing the merits of measures about of public manuaf every description which has not been confined to the strict

limits of the common law. on this footing freedom of the press has stood and on this foundation it yet stands. although the sedition act was never tested in the supreme court, the attack upon its 30 fines levied in his prosecution were repaid by acts account on the grant was unconstitutional. call reporting to the senate assumed it was a a matter at a quote which no one now doubts. jefferson as president pardon those have been convicted and sentenced under the act stating i discharged every person under punishment or prosecution under the sedition law because i consider and not consider the law to be a nullity as absolute and palpable as if congress had orders to fold it and get the stuff respect broad consensus that the act because of the state imposed upon criticism of government and public officials was inconsistent the first

amendment this distinction was limited with adoption of the 14th amendment and the application to the states of the first amendments prescription. those words as many of you probably recognize were written i just as we j brennan junior for a unanimous supreme court new york times v. sullivan. the remain in my judgment as accurate a summary of the relevant constitutional history today as they did when he wrote them more than 50 years ago. next i like to say a word about reality. libby has as a suspected she

would, we have known and litigated against each other for a very long time, painted for your picture of an irresponsible and all-powerful press. see, i knew what she was going to say. [laughing] i respectfully dissent from that you. from my perspective we live as we often do in perilous times. times in which the importance of a free press is as apparent as it was when madison drafted the first amendment and impose the sedition act. let me start by stating the obvious. the media are not perfect. it makes mistakes. it has blind spots. it sometimes drives people crazy. but the free press is sunday she was a healthy democracy and arguably the most important tool we have as citizens. it empowers the public by providing information we need to elect leaders and the continuing oversight to keep them honest. it bears witness to our moment the tragedy and triumph and provides the shared baseline of

common facts and information that bind communities together. since assuming office, , presidt trump is tweeted about the 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 as a human enterprise, and journalists make mistakes. but at least in my experience that journalists and news organizations that 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 delegitimize real news, dismissing factual and fair reporting as lyrically motivated abrogation. so when the "new york times" reveals his sam's financial practices come when the "wall

street journal" reveals money paid to a porn star, when the "washington post" revealed personal foundations dealings, he can cite that accountability simply dismissing the reports as fake news. even though all of those stories and countless more that he has labeled false 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 york times" in words with which i wholeheartedly agree. i would like to focus briefly on one of those intended effects and that is the response the president's campaign to open up the libel laws, which is if are going to be honest with each other, what brings us here today. i've been litigating libel cases for 40 years and for more isis, public officials and of the pile for public figures are now instituting libel actions against the press at an unprecedented and deeply troubling rate. former i sit the vast majority of those cases have been brought

not to secure a conversation actual injury to reputation but rather to punish the press for "speaking truth to power" and dissuaded from doing so in the future. lest they pay the price the burdens and enormous expense litigation regardless the merits of the claim. in many of these cases are funded not by the allegedly agreed plaintiff but i wealthy individuals and institutions with ideological or political axes to grind and score some. that at least is the contemporary reality that i see and it ought to concern all of us. which brings me to my last point, and that his constitutional law. at the end of the day what we're debating or is what the first amendment to the constitution means, the answer to the question, unless you're prepared to overrule marbury v. madison, is the job of judges including ultimately the justices of the supreme court. allow me one last time to invoke the words of another, this time i distinguished federal judge who was spoken to the issues

specifically in the context of the law of defamation. we face today a freshening stream of libel actions which often seen as much designed to punish writers of 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 is the pleasures and distractions of controversy must be willing to bear criticism, disparagement, and even wounding assessments. perhaps it would be better if this were calibrated assessments and with strict avoidance of the ad hominem. better, that is, if the opinion editorial pages of the public press or modeled on the federalist papers. but that is not the world in which we live, ever have lived, or are ever likely to know. and the law of the first amendment does 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 it should be. it should be that 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 a a constitutional provision such as the first amendment whose core is known but whose outer reach and contours are ill-defined face the never ending task of discerning the meaning of the provision from one case to the next. there would be little need for judges and certainly no office for philosophy of judging if the boundaries of every constitutional provision were self-evident. they are not. it is the task of the judge in this generation to discern how the framers values the definedn the context of the world they knew apply to the world we know. so it is with defamation here we know very little of the precise intention of the framers and ratifiers of the speech and

press clauses of the first amendment, but we do know they gave 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 that freedom. i may grant that for the sake of the point to be made, but it over time the libel action becomes a a threat to the centl meaning of the first amendment, why should not judges have their doctrines quit why is it different to refine and evolve doctrine here so long as what is -- the basic been at the minute that is to adopt fourth amendment to take account of electronic surveillance, the commerce clause to a just in a state monitored for the first amendment to encompass electronic media. i do not believe there is a difference. to say much matters must be left to the legislature is to say the changes in circumstances must be permitted to render

constitutional guarantees meaningless. we must never hesitate to apply old values to new circumstances, whether the circumstances are changes in technology or changes in the impact of traditional common-law actions. sullivan was an instance of the supreme court doing precisely this, as brown v. the board of education was more generally an example of the court appoint 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 the threats to establish constitutional value, and hence provides a craftsman tradition that robs full and fair reason many 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 end contravenes no principle of judicial restraint. we now face i need similar to

that which courts have met in the past -- exceed the command past years remarkable upsurge in libel action a company but a starley conflation of damage awards has threatened to impose the self-censorship on the press which can effectively inhibit debate and criticism as would over governmental regulation that the first amendment most 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 vigorous first amendment to not reach of the jury. those are the words of the late judge robert bork, himself no stranger to wounding scrutiny. they are is treated 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 lee if you could introduce me to some of the litigation thunder? [laughing] >> i don't know them personally, but -- >> no, lee makes the point there's a fast expansion of libel cases out there that are being funded by nefarious dark money, and i'm not aware of them and and i would just like to be introduced to them. [laughing] >> this gentleman here in the front. please keep your questions brief so we can get to as many of them. please wait for the mic, yes. thank you. >> thanks. having heard lee describe an upsurge in at this activity against the press, for example, libel, 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 of play here is moving in a good direction, perhaps even maybe embedded by favorable decisions where judges do not overextend the definition of limited public figure. do you think that is true? is this moving natural in a good direction, or are things getting worse, so to speak, with respect to the legend problem of a consequence free press? >> i think things are moving in that direction, and because of that i think they're getting worse. my problem with sullivan, which is kind of the mirror image of her 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 expensive 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. so i think this phenomenon is terribly troubling and is already having an inhibiting effect on the press. >> ideas it's agree 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 asked lee how many cases he sees defamation cases actually get beyond a motion to dismiss that very initial filing

for cases thrown out under rule 12 of the federal rules, there are very few, very few cases actual get into discovery and those that do are often thrown out on summary judgment. opening up access to the court by overturning sullivan, how you get there is that these cases are notoriously hard to win and there are not a lot of lawyers are willing to take them on, especially on a contingency fee basis. they don't lend themselves easily to figure out on the front and what a damages work is likely to be what whether the f taking on the case is worthwhile. and so by overturning sullivan i do think that you have that i don't think there's an explosion of libel cases, and even if there is, , i sorely don't think there's an explosion successful level of cases. and so i actually think that the

pendulum has -- [inaudible] >> i see your point about the immunity of the press in horrible case, one just has to think of -- but tell me, if it is so, defamation cases are so really proceed, how is it that national review has been dragged through legal help for years by, what by any measure would be public figure, michael mann? >> it's a good question. ..

>> but there are protections at verile early stages of litigation that allow a court to throw out meritless cases and there are insurance policies that are in play to help fund media companies in their litigation defense costs. and if an award is ever actually achieved in litigation. so the notion that the press is going to be completely inundat inundated, you know, in an economic way or is currently being inundated in an economic way, i just don't see that. and you compare it to the real damage that defamation causes the families, to livelihoods. you know, everyone loves a really free press and a consequence free press when the camera is n