This document provides a history of libel law in the United States, beginning with seditious libel laws in the 1700s that criminalized criticism of the government. It discusses important court cases like the trial of John Peter Zenger in 1735 and the Sedition Act of 1798. In 1964, the Supreme Court case Times v. Sullivan established that public officials must prove "actual malice" to win a libel suit, protecting free debate. The standard was later extended to public figures as well. This established the modern framework for libel that balances free speech with protection from false statements.

1. Open up those laws
Taking Trump literally and seriously:
A brief history of libel in America

2. Threatening The Washington Post
“Now, libel suits are very hard and I may look
at that, frankly, if I get elected, because it’s very
unfair that somebody could write whatever they
want to write and get away with it. And I will be
bringing more libel suits — maybe against you
folks. I don’t want to threaten, but I find that
the press is unbelievably dishonest.”

3. On the campaign trail

4. As president

5. Seditious libel
• Criticism of the government

6. Seditious libel
• Criticism of the government
• The greater the truth, the greater the libel

7. Seditious libel
• Criticism of the government
• The greater the truth, the greater the libel
• Essentially dead in the United States since
1735

8. The trial of John Peter Zenger

9. The trial of John Peter Zenger
• His New-York Weekly
Journal criticized
Gov. William Cosby

10. The trial of John Peter Zenger
• His New-York Weekly
Journal criticized
Gov. William Cosby
• Lawyer Andrew
Hamilton argued that
statements were true

11. The trial of John Peter Zenger
• His New-York Weekly
Journal criticized
Gov. William Cosby
• Lawyer Andrew
Hamilton argued that
statements were true
• Zenger was acquitted
in an act of jury
nullification

12. John Adams

13. Sedition Act of 1798
• Punished speech that was “false, scandalous
and malicious” about government officials
other than the vice president

14. Sedition Act of 1798
• Punished speech that was “false, scandalous
and malicious” about government officials
other than the vice president
• More than 20 Republican (Jeffersonian)
newspaper editors were arrested and some
were imprisoned

15. Sedition Act of 1798
• Punished speech that was “false, scandalous
and malicious” about government officials
other than the vice president
• More than 20 Republican (Jeffersonian)
newspaper editors were arrested and some
were imprisoned
• Jefferson was elected president in 1800, and
the victims of Adams’ repression were
released

16. Woodrow Wilson

17. Espionage Act of 1918
• Not really a seditious libel statute, but rather
was aimed at stifling interference in the war
effort

18. Espionage Act of 1918
• Not really a seditious libel statute, but rather
was aimed at stifling interference in the war
effort
• Slowly paved the way for expanding freedom
of expression, led by Holmes and Brandeis

19. Espionage Act of 1918
• Not really a seditious libel statute, but rather
was aimed at stifling interference in the war
effort
• Slowly paved the way for expanding freedom
of expression, led by Holmes and Brandeis
• In the 1920s the 14th Amendment was for the
first time applied to the First Amendment

20. Defining libel in the modern era
• False

21. Defining libel in the modern era
• False
• Defamatory

22. Defining libel in the modern era
• False
• Defamatory
• Is that enough to ensure freedom of speech
and of the press? Or do we need something
else?

23. “Heed Their Rising Voices”

24. A constitutional dilemma
• The white power
structure in the South
was wielding libel law
as a weapon

25. A constitutional dilemma
• The white power
structure in the South
was wielding libel law
as a weapon
• Libel had traditionally
been left to the states

26. A constitutional dilemma
• The white power
structure in the South
was wielding libel law
as a weapon
• Libel had traditionally
been left to the states
• Was there a role for the
U.S. Supreme Court?

27. A constitutional dilemma
• The white power
structure in the South
was wielding libel law
as a weapon
• Libel had traditionally
been left to the states
• Was there a role for the
U.S. Supreme Court?

28. Times v. Sullivan (1964)
“[W]e consider this case against the background of
a profound national commitment to the principle
that debate on public issues should be uninhibited,
robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials.”
— Justice William Brennan

29. Times v. Sullivan (1964)
“[E]rroneous statement is inevitable in free
debate, and … it must be protected if the
freedoms of expression are to have the
‘breathing space’ that they ‘need … to survive.’”

30. A third test for libel is added
• Public officials must show that the offending
statement was published with actual malice
– Knowingly false; or
– Reckless disregard for the truth

31. A third test for libel is added
• Public officials must show that the offending
statement was published with actual malice
– Knowingly false; or
– Reckless disregard for the truth
• That standard was later extended to public
figures as well

32. A third test for libel is added
• Public officials must show that the offending
statement was published with actual malice
– Knowingly false; or
– Reckless disregard for the truth
• That standard was later extended to public
figures as well
• Following several years of confusion, the court
arrived at a negligence standard for private
figures

33. Discussion questions
• Is it fair to require public officials (and public
figures) to meet such a high standard in order
to fight against false and defamatory
statements?

34. Discussion questions
• Does the actual malice test encourage the
media to act irresponsibly in the knowledge
that they’ll be held harmless if recklessness
can’t be proved?

35. Discussion questions
• Is President Trump’s promise to weaken libel
protections a threat to the First Amendment?
Or is he expressing a common-sense view?

36. Anthony Lewis
• His books “Make No
Law” and “Freedom for
the Thought That We
Hate” trace the
evolution of how we
understand the First
Amendment