US President Donald Trump is firing up a stunt on Wednesday to try to shame news organisations he doesn’t like. It’s a cheap ploy, but it comes with a serious, sinister sub-text.
Trump has been making a case for changing US libel laws to make it easier to punish publishers of news he considers "fake". What he doesn’t seem to realise is that actual fake news is already outside the protection of current laws.
That’s the opinion of one of the foremost experts on US libel law, Robert D Sack, a senior judge on the US court of appeals for the second circuit. Sack has focused on these issues for decades; before becoming a federal judge in 1998 he was a libel lawyer representing notable media clients such as the Wall Street Journal.
Fake news, "invented and disseminated with the intention of fooling the recipient into believing it is genuine", is actionable under present law, he writes in the latest edition of his definitive two-volume treatise on defamation, Sack on Defamation: Libel, Slander and Related Problems.
What he means is that if Trump were correct that mainstream news outlets deliberately published false information with the intent of making him look bad, he could successfully sue them without any changes to existing law.
Trump uses the ‘fake news’ label to tar almost any news outlet or story he doesn’t like ... The idea is to give core supporters an excuse to disregard damaging stories
Contemporary libel law grows out of a 1964 landmark US supreme court case, New York Times versus Sullivan, in which the justices ruled that a public figure can win a defamation case only by showing that false and harmful charges against him were made with "actual malice". That’s a legal term-of-art that means publishing something knowing it was false or with "reckless disregard" for whether it was true or not.
This daunting standard applies only to public figures; ordinary citizens can win libel judgments if they are defamed negligently. It’s designed to protect a free, aggressive press against intimidation or even bankruptcy.
Sack has written that profound changes in the structure of the news media since 1964 have only made these protections more important. "If the classic institutional press is less robust now than it once was, the response surely cannot be less protection, but perhaps in some respects recognition of the need for more so it can continue to serve," he wrote in the latest preface to his libel book.
Trump uses the "fake news" label to tar almost any news outlet or story he doesn’t like, including the New York Times, Washington Post, CNN, NBC News and most recently the Wall Street Journal, whose owner, Rupert Murdoch, has been Trump-friendly. The idea is to give core supporters an excuse to disregard damaging stories.
In anticipation of Wednesday’s "Fake News Awards" charade, Senator Jeff Flake, one of the few implacable Trump critics remaining among conservative Republicans, has prepared blistering remarks about the president’s contempt for a free press. Recalling Trump’s charge that the press is "the enemy of the American people", the Arizona lawmaker noted that the Soviet dictator Joseph Stalin used similar language to justify purges against real and imagined opponents. (Not that Stalin had a free press to worry about.)
"The president has it precisely backwards — despotism is the enemy of the people," Flake said in remarks prepared for delivery in the Senate. "The free press is the despot’s enemy, which makes the free press the guardian of democracy. When a figure in power reflexively calls any press that doesn’t suit him ‘fake news’, it is the person who should be the figure of suspicion, not the press."
• Hunt is a Bloomberg View columnist. He was the executive editor of Bloomberg News, before which he was a reporter, bureau chief and executive Washington editor at the Wall Street Journal.
• This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and/or its owners.