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A Policy Argument on Accountability

Regardless of your political affiliation, the book titled, ‘A Warning’ by an anonymous senior White House official marks a new low in the history of American journalism. The publisher, Hachette Book Group, subjects readers to unsubstantiated allegations written by a nameless author — allegations that cannot be critically evaluated unless the author is identified and sources deemed credible.

The Washington Post states that the book describes Trump as unfit to be president and a danger to national security. However, the White House has denounced the book, calling it a work of fiction, and Donald Trump has questioned whether the author even exists.

If these allegations are true, America should be deeply concerned. However, if false — and politically motivated —we should be infuriated.

Journalism was founded on a principle of disseminating verifiable truth.

As a society we have a right to determine whether information presented to us, including this book, is factual. Widespread circulation of misinformation under the guise of an anonymous figure of authority is the definition of propaganda. It is psychological warfare. Unfortunately, the media’s unwavering Trump bashing frenzy has fatigued our senses and ability to think critically. To make things worse, main-stream journalism has become as inept as a demagogic troll posting conspiracy theories on social media.

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Journalism was founded on a principle of disseminating verifiable truth. In contrast, main-stream media’s glorification of unsubstantiated allegations by an anonymous author is the antithesis of journalism. Sadly, when journalists and publishers report on “news” related to Trump or his alleged wrong-doings, there is no expectation or desire to fact-check. These unverified publications are considered evidence of wrongdoing in and of themselves.

While everyone is entitled to a political opinion, the journalism being practiced by main-stream media, in principle, is wrong. On policy grounds, main-stream media must be stopped from propagating self-serving misinformation and be held accountable for their actions.

Can Trump Sue the Hachette Book Group For Defamation?

While the Hachette Book Group may believe that presenting potentially false statements under anonymous authorship may skirt defamation laws, they are incorrect. If Trump were to sue the publisher and unnamed author for defamation he would most likely succeed. In fact, the identity of the author can ultimately be determined.

Here’s how:

Fact v. Opinion

Defamation requires a false statement that can be proven or disproven. Here, the publisher of “A Warning” would likely argue that the contents of the book are opinion opposed to fact.

However, the US Supreme Court, in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), stated that an opinion can be defamatory when the underlying facts forming that opinion are false. Therefore, the author’s portrayal of Trump as inept and a danger to national security would be defamatory only if the underlying facts are false. Thus, it becomes necessary to analyze the sources forming the author’s opinion.

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The Underlying Facts

In this case, the unnamed author has made many potentially defamatory statements. The book generally ridicules Trump’s character and claims that his behavior impugns the proper conduct of his job as president. Legally, these statements alone can be considered defamatory.

For example, as reported by the Post, ‘A warning’ raises questions about Trump’s “mental acuity.” The author claims that Trump’s staff is concerned about his mental state by asserting: “[Donald Trump] stumbles, slurs, gets confused, is easily irritated, and has trouble synthesizing information, not occasionally but with regularity. Those who would claim otherwise are lying to themselves or to the country.”

It should be noted that despite the author’s claim that he is “not qualified to diagnose the president’s mental acuity,” he emphasizes that those who may not agree with him are lying. However, no Trump staffer has ever publicly expressed concerns about the president’s “mental and neurological faculties.” Furthermore, the author has also claimed that Mike Pence was supportive of invoking the 25th Amendment — that the president is unfit for office — an allegation Pence has categorically denied.

The author clearly wants us to believe that Trump does not have the mental capacity to be president. Yet, there is absolutely no evidence to support such a conclusion.

The First Amendment Right to Free Speech

Reporters, writers, and publishers often believe that they have absolute immunity to free speech and expression under the First Amendment as long as their content is “news-worthy.” They are wrong. Under the First Amendment, a conditional privilege applies only to speech that is truthful.

While defamation generally requires that a defendant makes a false statement about a plaintiff, the standard of proof for public officials, including politicians like Donald Trump, is much higher. The rationale for this standard is to prevent stifling of free ideas and expression related to issues of public concern, including policy decisions. Accordingly, the law requires that Trump provides a showing that (i) the statements in the book are false, and (ii) that the author acted with ‘actual malice’.

Showing of Actual Malice

In New York Times v. Sullivan 376 U.S. 254 (1964) the US Supreme Court held that public officials must prove “actual malice,” under a clear and convincing standard. Actual malice, in the context of defamation, means that the defendant published statements with knowledge of falsity or reckless disregard of the truth.

Therefore, the main issue here becomes whether Trump can provide clear and convincing evidence that the publisher and author printed the book knowing that its contents were false.

The Journalist’s Privilege

Since Trump’s burden of proof is very high, his attorneys must question the author with regard to sources of the alleged facts. However, under the “journalist’s privilege,” media organizations are protected from revealing confidential sources. It stands to reason that the publisher would use this privilege to prevent disclosure of the author’s identity in an attempt to deprive Trump the opportunity to prove “actual malice.”

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However, the journalist’s privilege is not absolute. In determining whether such a privilege applies, courts determine: (1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information. Larouche v. National Broadcasting Co., Inc., 780 F.2d 1134 (4th Cir. 1986).

A similar case draws parallels to the current matter.

In Dangerfield v. Star Editorial, Inc. 817 F. Supp. 833 (C.D. Cal. 1993), famed comedian Rodney Dangerfield filed suit against the Star tabloid and the National Enquirer, claiming that defendants published a false and misleading article based on four unnamed sources.

Since Dangerfield was also a public figure, he had to provide a showing of actual malice. Thus, after exploring all other avenues, Dangerfield sought information known only to the unnamed sources. During deposition, Star refused to identify the sources, claiming privilege. Dangerfield contended that he could not prove actual malice if he was deprived of the opportunity to test the credibility, reliability, and very existence of the unnamed sources.

As a matter of policy, this book is an abuse and desecration of the First Amendment and the freedom it entails — the freedom we, allegedly, highly value as a nation.

The court agreed with Dangerfield and found that: (1) the information sought was relevant as it was integral to proving actual malice, (2) Dangerfield had exhausted all possible avenues prior to seeking information known to the unnamed sources, and (3) a compelling interest for disclosure existed because Dangerfield would have been deprived of a fair trial without being able to determine the credibility of the eyewitnesses.

Similarly, Trump can likely make similar arguments to compel the publisher to disclose the identity of the unnamed author and prove actual malice required to establish a case for defamation.

Concluding Remarks

As correctly noted by White House press secretary Stephanie Grisham to the Post, “Real authors reach out to their subjects to get things fact checked — but this person is in hiding, making that very basic part of being a real writer impossible.” As a matter of policy, this book is an abuse and desecration of the First Amendment and the freedom it entails — the freedom we, allegedly, highly value as a nation.