In the 1920s, “Big Bill” ruled Chicago. His mother called him William—William Hale Thompson. To this day, Bill holds two distinctions: he is the last Republican mayor of Chicago, and he is the most corrupt public official in Illinois history. That is saying something.

Bill was imposing—all bravado and 250 pounds. He was also a populist. He promised Chicagoans an end to corruption and the high cost of living. He railed against “organized forces” and attacked “the public press” that wielded “willful misrepresentation.”

Bill did not like the Chicago Tribune. The Tribune, he told a crowd, was a “selfish newspaper” that defamed the “most orderly and law-abiding of all the big cities on earth.” For the papers he liked, they rendered “loyal service.”

So, Bill was a lot of things. He was also a bought man—Al Capone’s bought man. Bill drove out honest men. He filled government ranks with criminals. And he used his position to enrich himself. Some $20 million in today’s dollars was found stuffed in safe deposit boxes.

In life, Bill did what thin-skinned men in power do: ordered his lawyers—well, the City’s lawyers—to sue his critics. This included the Tribune in what became known as the Ten Million Dollar Libel Suit.

For everything that was bad about Bill—and plenty was bad—his fight against the Tribune was good because it created some very good law.

The facts of the underlying case are not important. What is important is that Cook County Judge Harry M. Fisher, a Lithuanian immigrant, threw the case out, finding that “no cause of action exists” like that asserted by Bill.

But for the press, Judge Fisher wrote, “the acts of public benefactors would go unnoticed, impostors would continue undismayed, and public office would be the rich reward of the unscrupulous demagogue.”

He would not let the government interfere with this function. Allowing suits for libel on government, he feared, would chill the reporting of truth.

“This action,” he wrote, “is not in harmony with the genius, spirit and objects of our institutions. It does not belong to our day. It fits in rather with the genius of the rulers who conceived law not in the purity of love for justice, but in the lustful passion for undisturbed power.”

The Illinois Supreme Court affirmed, holding that “prosecutions for libel on government [had no] place in the American system of jurisprudence.” Forty years later, the U.S. Supreme Court adopted that principle as its own in New York Times v. Sullivan.

Today, devotion to that principle is being tested.

While lawsuits for libels on the government remain verboten, libel lawsuits by high-ranking government officials based on reporting about their official conduct are not. Lawsuits like those brought by President Donald Trump and FBI Director Kash Patel are proof of this: file a lawsuit in a personal capacity, avoid the principle.

The evil is the same, though. If such lawsuits are tolerated, officials will nevertheless have what Judge Fisher called “a weapon to be held over the head of every one who dares print or speak unfavorably of the men in power.” We will get an officialdom “unrestrained by fear of publicity,” doing harm Judge Fisher thought incalculable.

Congress can prevent this from happening. The solution is simple: grant citizens an immunity that neutralizes attempts by high-ranking government officials to use state tort law as a weapon to intimidate their critics and line their pockets.

That immunity would be analogous to constitutional and statutory protections already afforded to public officials though denied to the public. As the Illinois Supreme Court held, “the individual citizen must be given a like privilege when he is acting in his sovereign capacity.”

This conclusion—especially as it applies to the executive branch—is bolstered by the Supreme Court’s embrace of the unitary executive theory, as First Amendment lawyers like David Korzenik have observed. To paraphrase the Court, the president is the executive branch. And his officers are his envoys. That being so, suits by them over statements about their public selves are the functional equivalent of suits by the executive branch. (The point is underscored by Mr. Trump’s personal lawyers now serving in government.)

A law providing an absolute immunity to citizens to criticize high-ranking executive branch officials has precedent elsewhere too. Justices Black and Douglas maintained that the First Amendment granted “the press an absolute immunity for criticism of the way public officials do their public duty.” Justice Goldberg agreed “despite the harm which may flow from excesses and abuses” of that immunity.

One should not be ignorant of those harms. Bad actors could use this immunity as a shield behind which they could launch disinformation campaigns against public officials. This could have serious consequences, including polluting public discourse. This assumes, however, that bad actors are already deterred by defamation law from waging these campaigns today. That is far from clear considering the glut of disinformation in recent years.

More to the point, defamation law’s purpose is not to protect healthy political discourse—it is to protect reputation, which has a real cost on public discourse. As Professor Lili Levi has noted, “[d]efamation lawsuits cannot credibly stem the systemic tide of disinformation or predictably correct reputational harm, but they do threaten powerful chilling effects for the press, super-sized by our current sociohistorical context.”

An immunity also addresses a central problem with the actual malice standard: vindicating it can require protracted litigation. Winning on actual malice after discovery or even a motion to dismiss or two may be pyrrhic given the exorbitant costs of litigation today. This rewards litigants who use the fact of litigation—not a judgment—as the punishment.

Congress should establish this immunity by adopting The Defending Expression Against Threats of Executive Retaliation Act (the DETER Act) for suits by executive branch officials that target speech made in interstate commerce. See the draft act here.

First, narrowly tailor the law to the class of individuals most likely to be bad actors and who wield and can leverage substantial government power: high-ranking officials as defined by the top three levels of the Executive Schedule. This would cover the president through the heads of mid-size federal agencies, like the Federal Communications Commission, among other officials.

Second, define the covered speech broadly to ensure that the act’s purpose is attained. The proposed act would cover speech not only about official conduct but also about a covered official’s “fitness or qualifications” for office. This definition should be interpreted broadly.

Third, give the act teeth by authorizing an early motion to dismiss on the basis of immunity from suit. The law could also make clear that falsity and state of mind are irrelevant—a necessary tradeoff to ensure the law’s purpose is achieved. In Judge Fisher’s words, “It is not the right to speak the truth, but the protection of the right to speak, that is here in the balance.”

Fourth, stuff the act with procedural protections. Freeze discovery upon the filing of a motion and provide for immediate appeals. Give defendants sued in state court the choice to remove the case to federal court (much like government officials can under the Westfall Act). Finally, adopt mandatory fee-shifting in favor of defendants.

Had Big Bill made it to the White House (he had ambitions, after all), he would have hated the DETER Act. See, Bill understood the stakes; he simply had them backwards. He denounced his critics as a “conspiracy against popular government,” all while claiming to speak for “the express will of the people.” But the criticism he wanted to silence was not the conspiracy against popular government—it was popular government. 

The Court stated this truth plainly in Sullivan: speech about government officials “is more than self-expression; it is the essence of self-government.” When a high-ranking official sues over criticism of how he did his job, he sues as the government in all but name—and the government, as Judge Fisher taught many years ago, has no such claim to assert.