Floyd Abrams, a lawyer whose reputation as a fierce protector of free speech is perhaps second to no one, has a surprising message to the media establishment. On Wednesday evening, he told a room full of other media lawyers that in light of Tuesday's election of Donald Trump, they needed to think creatively and even contemplate bringing libel cases on the plaintiff's side to bolster the First Amendment. The suggestion drew audible gasps from those who had gathered at a dinner hosted by the Media Law Resource Center to hear from Edward Snowden and Daniel Ellsberg about the tension between national security and an independent media.
Abrams, 80, has been on the defenders' side of the courtroom most of his legendary career. His bona fides are too numerous to mention in full, but among his cases are representing The New York Times in the Pentagon Papers case, Senator Al Franken in a trademark lawsuit brought by Fox News over the use of "fair and balanced," and in a showcase of principles over politics, Senate Majority Leader Mitch McConnell in Citizens United v. Federal Election Commission. During the late 1990s, he also went toe-to-toe with New York City's then-Mayor Rudy Giuliani - Trump's potential choice to lead the Justice Department - over public funds taken away from the Brooklyn Museum of Art over an exhibition that included a painting of the Virgin Mary on a canvas adorned with elephant dung. Abrams prevailed in each of these cases.
So when Abrams, before moderating a discussion with Snowden and Ellsberg, called Donald Trump the "greatest threat to the First Amendment since the passage of the Sedition Act of 1798," a roomful of lawyers took notice and began murmuring. He then told attendees they would be on the front lines of an important battle during the next four years.
What did Abrams mean by his suggestion that those in the media needed to get creative in the face of a president promising to open up libel laws?
"Trump has denounced people in language that punctuated his campaign," Abrams tells The Hollywood Reporter in a follow-up conversation. "If what he said is not pure protected opinion, then the press side ought to take a hard look and see if they have a basis for commencing litigation. They have to think creatively, as no candidate in living memory has denounced the press as he has; no candidate has banned journalists from covering him because they didn't like the tone or substance of what [journalists] are saying. And so, press lawyers ought to bear in mind that if things get rough, if the relationship is one of constant denigration and threats, it may be time for journalists to think about using libel laws in a way that is constitutional."
How would this work in practice? If Trump calls a reporter "dishonest" and claims a story is "" would it be grounds for a lawsuit?
"If what he's saying is merely rhetorical or hyperbolic in the sense of 'reporters are no good,' that would not give [the journalist] a right [to sue]," answers Abrams. "But if he seems to mean it, if he says a reporter is routinely publishingmaterial, then maybe we're moving down the road where a reporter responds by not only saying, 'It is not so,' but by going to court."
Abrams is protective enough of the First Amendment to caution journalists contemplating theoretical lawsuits to consider the ways litigation could backfire. He acknowledges there could be legal battles, for example, over whether reporters qualify as public figures. But he's equally insistent that it could be time for members of the press to begin thinking broadly enough to go on the offensive. An added benefit, besides protecting one's reputation, would be providing President Trump with an instructive lesson on the wisdom for libel limits.
A lawsuit wouldn't be without enormous difficulty. Getting around logistical nightmares like any asserted executive immunity and scheduling concerns would be challenging to say the least. Abrams points to the Supreme Court's decision to deny President Bill Clinton's immunity request and not delay in its 1997 decision over Paula Jones' sexual harassment lawsuit. The lawyer says he disagreed with the outcome at the time, but is now thankful there's no flat rule protecting a president from having to respond to a civil lawsuit.
Should reporters bring libel claims against Trump or any member of his cabinet, such plaintiffs would not only face challenges over their ability to contest statements arguably within the ambit of ministerial duties. Media figures suing would also be inviting a professional quandary: By becoming a direct legal adversary against Trump, a journalist would be sacrificing perceived impartiality, which could harm their ability to profess fairness in ongoing coverage.
Of course, charges of rampant bias in the media have already undermined any illusion of objectivity, but bringing a lawsuit would certainly mean even more provocation - subjecting a journalist's credibility to inspection in more ways than one.
Abrams responds that publications would certainly have to make their own judgments about removing plaintiff journalists from their beats, but adds, "Just in the same way should Trump sue a reporter."
(UPDATE: The story originally reported that Abrams told media lawyers that Trump was the biggest threat since the Sedition Act of 1918. He actually referred to the Alien and Sedition Acts of 1798. The post has been corrected.)