The public has a right to criticize the people who govern them, so the least protection from defamation is given to public officials. When officials are accused of something that involves their behavior in office, they have to prove all of the above elements of defamation and they must also prove that the defendant acted with «actual malice.»

(For a definition of actual malice, see the «History of Defamation and the First Amendment, below.»)People who aren’t elected but who are still public figures because they are influential or famous — like movie stars — also have to prove that defamatory statements were made with actual malice, in most cases.

In the landmark 1964 case of New York Times v. Sullivan, the U.S. Supreme Court held that certain defamatory statements were protected by the First Amendment. The case involved a newspaper article that said unflattering things about a public figure, a politician.

The Court pointed to «a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.» The Court acknowledged that in public discussions — especially about public figures like politicians — mistakes can be made.

If those mistakes are «honestly made,» the Court said, they should be protected from defamation actions. The court made a rule that public officials could sue for statements made about their public conduct only if the statements were made with «actual malice.» «Actual malice» means that the person who made the statement knew it wasn’t true, or didn’t care whether it was true or not and was reckless with the truth — for example, when someone has doubts about the truth of a statement but does not bother to check further before publishing it.

The bias exhibited by the mainstream media is rather overt.    The democrats and their extreme partisans could not accept that “we the people” had elected Donald Trump over Hillary Clinton.    It did not take long to act out.    After a brief period of depression, they as well as the politicians began a campaign of unjustified attacks, misinformation and unproven accusations.    Our elected president also gave them multiple excuses with his constant tweets, exaggerations, and behavior unbecoming his office.    As factual at that might be, in their reporting it was also noticeable the absence of coverage on his many achievements in our economy and foreign affairs.    The label of “fake news” even if it seemed over the top was justified.    There are so many examples of the media’s behavior that it would require a much longer writing.    How can the influence of the press, if false, on the voters be stopped?   

The libel laws in our country make it extremely difficult to achieve a penalty.    We value our freedom of expression, rightly so, as fundamental in our Republic and it has to be considered as a factor when charging defamation.    Above you will find definitions on this topic.    I will make a case on the latest media’s malfeasance.    Early on a dispute was made between Trump supporters and haters on whether the initial investigation of his campaign was appropriate or a false narrative started by members of our intelligentsia.    The facts are starting to come out with the IG’s, Horowitz, report to be followed by a more comprehensive investigation by Prosecutor John H. Durham.   

An objective analysis of the media’s coverage since the dual investigation reports from the House intelligence committee by Rep. Devin Nunes and the then minority Adam Schiff if not defamation comes extremely close to have been with malice.     Nunes was abused, ridiculed, derided, insulted by CNN, MSNBC, and others contrasting with the adulation and support given to his counterpart Schiff, even if the latter had been exposed of lying about the Muller investigation.   

Both of them based their conclusions on identical information which because of classification was not read by the reporters.    The truth should have been limited to information on both summaries, but the extreme bias was made apparent.    When the Horowitz evaluation was made public, it confirmed what Nunes had written and again exposed Schiff to making false statements.    Not to be outdone with early “leaks” and misinterpretations the MSM tried to parse Horowitz conclusions to hide what was clear, that the investigation started with flimsy evidence, the actual behavior of the FBI agents and others were either a demonstration of gross incompetence,  intentionality (bias), or in between.    A volunteer to Trump’s campaign, among others, were set up, and spied upon by surveillance of his phone, e-mails,  and recordings.   

The FISA application made by a British spy named Steele that had been proven as farcical was, contrary to Schiff’s assertions, a main component of the petition to the Court.    These facts are only a fragment of the damming conclusion by Horowitz, with another investigation to follow that should expand on his findings.    Carter Page’s life has been ruined and every one of us if able to judge with independence of thought should worry that if these behaviors are not stopped and penalties, including for defamation, not exercised could be next in line.    In my view malice, by many of our bureaucracy and the media is apparent and consequences deserved.

Fernando J. Milanes, MD