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Free Speech, Fake News & Social Media: The First Amendment in the Spotlight

South Florida Legal Guide recently interviewed Thomas R. Julin, a shareholder in Gunster’s Miami office whose practice focuses on free speech, libel law and freedom of information cases for the press. Here are his thoughts on current First Amendment issues.

Q. What is the First Amendment and why is it important?

The First Amendment to the U.S. Constitution says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” In this amendment, the founding fathers recognized that citizens need to be able to speak their minds and that the press plays a vital role in society by exposing excessive, unlawful or corrupt governmental actions.

Q. Why is it in the news today?

President Trump's repeated attacks on the media are testing the First Amendment right from the top. But that's not the only issue facing the press. In South Dakota a beef products company accused by a government official of using fillers called “pink slime” filed a $6 billion libel suit against ABC news. ABC reported the controversy accurately, but it's possible a jury might be influenced by what the president is saying. Hulk Hogan’s successful invasion of privacy suit against the Gawker website has inspired a lot of hostility against the media.

Q. How do the courts view the First Amendment?

It will be important for the courts to rein in excessive libel and privacy invasion claims so that facts and viewpoints can continue to be freely expressed in our country. The U.S. Supreme Court in recent years has been a strong protector of speech of large corporate interests, but has not shown as much concern for individuals’ speech rights.

Q. When it comes to libel, what can the President say or not say?

Libel law provides immunity to government officials whenever they are speaking in their roles. It also protects them from other types of tort actions. Although former FBI director James Comey told Congress that he was defamed by Trump's comments, basic common law principles protect the President.

Q. What about satirists and comedians?

The First Amendment also protects satirists and comedians, unless their words create a true threat to the President. The portrayal of Trump as "Julius Caesar" in a Broadway play, and Kathy Gifford's repulsive showing of the bloody head of President Trump are close to the edge. But anyone threatening real violence needs to be aware that the First Amendment does not provide protection.

Q. Do we have polarization in the media?

To some extent, the answer is yes. Many people listen to their own echo chambers, whether it’s MSNBC or Fox News. However, the media as a whole does an excellent job presenting both sides of a story. While commentators today might be critical of the other side or focus on certain aspects of a story, they don't ignore it.

Q. So is the media the real problem?

No. Americans today are divided. Some favor Trump's approach with tax cuts and support for business, while others believe issues like healthcare and education for all are far more important. The media is very good at reporting on these issues, and people choose the arguments that fit their beliefs and values on both sides. So, what we have is a very healthy debate in our society. What we need to do is learn how to use these debates to solve our problems.

Q. How do you deal with the torrent of fake news on social media?

Both Facebook and Twitter have recognized that their platforms are being used by people who want to propagate false statements. They are implementing more fact checking, technical and social solutions, because they realize that people will turn away if they can no longer rely on their social media platforms.

Q. What about traditional media?

Newspapers and TV stations have implemented fact checking and editorial review systems throughout their existence. That’s very different from social media where no one is filtering the news, and anyone can disseminate anything to millions of people.

Q. Any further thoughts?

The quality and depth of information now available to Americans is unparalleled in our history. During the Presidential campaign, we regularly saw fact-checking articles run side-by-side with the candidates’ statements. In some cases, reporters have made mistakes and columnists have gone too far with their opinions. That’s an ongoing concern, but nothing to warrant the ongoing campaign to undermine the integrity of serious journalism.

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