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Commentary: Freedom of speech should protect all opinion

President Donald Trump has called this country’s libel laws a sham and a disgrace and said he wants to change libel laws to allow liability for publishing “knowingly false” statements. He has said we need to “open up” libel laws and allow more litigation against newspapers in particular.

He’s got that half right in that changes may be needed in our nation’s libel laws. But those laws do not need to be opened up to greater liability. Instead, we need greater protection for opinions expressed concerning matters of fact.

The president doesn’t have direct influence over libel laws because those laws are set at the state level, but the change he wants isn’t needed, anyway. If a news organization knowingly publishes a false statement of fact, even about a public figure, the paper can already be sued for libel.

The problem with libel law stems from the fact that constitutional protections fail to match the original understanding of the Founders that opinion is not libel. That is, a person expressing an opinion cannot be punished by the law for expressing that opinion.

The Supreme Court has a mixed record in this regard. The court moved closer to the original understanding when it decided in Gertz v. Robert Welch (1974) that “there is no such thing as a false idea.” The court held that “however pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”

But then this constitutional limitation on libel’s applicability to statements of opinion was pulled back by the court in Milkovich v. Lorain Journal (1990), which held that the libel law limit did not include opinion with a “provably false factual connotation.” This idea undermines the otherwise consistent understanding of the court that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in … matters of opinion.”

If a statement truly is a matter of opinion, not a claim of privately known facts, then the statement should not be considered libel. People must be able to disagree with a government official about a factual conclusion, such as Trump’s inauguration crowd size. But as long as a person claims no special knowledge about a fact (by, for instance, merely relying on third-party news reports), the opinion should be protected speech.

Much of the way the Founders’ understanding of the freedom of speech in libel cases was formed in the wake of a 1734 trial of John Peter Zenger, a German-American printer and journalist in New York. In this case, Zenger accused the governor of destroying land deeds, arbitrarily replacing judges, and taking away trial by jury. Many of these accusations were publicly known facts, which Zenger sought to prove true, as well as his own interpretation and conclusions concerning these facts.

Zenger’s lawyer, Andrew Hamilton, successfully argued to the jury that truth was an absolute defense to libel. The Founders would have understood that this applies to the truth about a person’s opinions and conclusions as well.

That is not to say that newspapers can publish whatever they want, of course. Even under current legal precedent, a newspaper could be held accountable if, say, someone is harmed as a result of publishing knowingly false information from a secret source who claims personal knowledge about a situation.

Americans should disregard Trump’s occasional calls to expand libel laws. Maybe the president thinks certain statements he dislikes are purposefully false but can’t be proved. That’s hardly a problem with libel laws — it’s a problem with his evidence.

The only failure of the libel laws is the failure to protect clearly all opinion under the freedom of speech. The American people have the right truthfully to tell others what they believe to be true.

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