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. Its 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 selfgovernment and a hallmark of a free society. That is not in question. In fact, its a nonnegotiable. Free speech, however, is not the exclusive prerogative of the press. The First Amendment you will remember protects the freespeech 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 freespeech while attacking those who abuse it. Whats 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 americas 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 Franklins critique of the freedom of the press and National Affairs a few years ago. Its 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 highprofile 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 its an honor to be here with my fellow panelists. We are friends of the free press because its absolutely necessary to republican governor. You cannot have political liberty. Its 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 wouldbe 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 its 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 dont 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, its 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 doesnt speak so highly of itself. Newspapers bring together local Community Health rule themselves politically. It simply cant 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 thats the good. Heres the bad. Neither franklin nor de tocqueville were naive 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, franklins 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 its 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 lets 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. Thats because theres 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 doesnt target them. And here is worth de tocqueville picks up the thread. Hes astonished that while america is so free, so stable, so prosperous, unlike his home country of france, he says Americas 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 its 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 couldve 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, visavis 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 antinature 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. Thats 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 its 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. Its 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 runup 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. Theres 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 doesnt 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. Its 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. Im not someone who dislikes freespeech. To the contrary. The First Amendment is to be celebrated. Its what separates our great nation from most other countries on the planet. Its what prevents us from being locked up, thrown into jail when we say things that our government officials dont like. And its 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 falsi