Libel laws
Trump’s attacks on a free press threaten to undermine the First Amendment.
President Trump continues to show disdain for free expression with his latest attack on the nation’s libel laws.
The most recent threat came last week as part of the administration’s pushback on Michael Wolff ’s book, “Fire and Fury: Inside the Trump White House.” Trump — who likely has lost more libel suits than any person to occupy the White House — made similar attacks on libel laws while running for president.
“We are going to take a strong look at our country’s libel laws, so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts,” Trump said last week.
The latest outburst isn’t surprising, given the president’s hostility toward any form of criticism and his well-established lack of understanding of the First Amendment. But the comments are still disturbing.
It is true that plaintiffs bringing a libel claim in U.S. courts face a tougher challenge than in most other countries. That’s a good thing. U.S. libel law is a key protection for robust political debate in this country.
As president, Trump can do mercifully little to alter libel laws. Such laws are written at the state level, not at the federal level, and libel law has mostly been shaped by court rulings rather than statutes over the centuries. Over the past 50 years, courts generally have made it more difficult for plaintiffs to prevail in libel cases, with the aim of protecting free speech.
The seminal Supreme Court ruling on libel was the 1964 case, New York Times vs. Sullivan. That ruling grew out of efforts in the South to use libel law to intimidate civil rights activists. In a 9-0 ruling, the court ruled that public officials had to prove “actual malice” to win a libel verdict, meaning they had to demonstrate that a person knowingly made a false claim or acted with reckless disregard to whether it was false or not.
That protection lies at the heart of Trump’s objection to libel laws. The president has never made explicit what standard he would prefer, but it’s clear he’d like to make it easier for public officials to use libel laws to punish – or silence — their critics.
Under current law, plaintiffs can and do recover damages when they are the subject of false and defamatory statements. It is not easy to win such cases, nor should it be. The president serves as Exhibit A for why those barriers are good.
Trump frequently equates stories he doesn’t like with falsity, hence his frequent cry of “fake news” to denounce even well-documented criticism. Criticism and falsehood are not remotely the same thing, and in pushing for libel reform, Trump is really striving to crush criticism. Before becoming president, the notoriously thin-skinned Trump filed seven lawsuits that used libel claims or other laws in an effort to snuff out criticism. He sued an architect who criticized a proposed Trump building. He sued a business reporter who questioned Trump’s net worth claims. He lost all of those cases, but bragged that bringing the suits punished his critics by running up their legal
It’s not clear where Trump will go with his vow to change libel law. The president frequently says he’ll do things and never follows through. But the public, and Congress, should be on guard.
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It’s not clear where Trump will go with his vow to change libel law. The president frequently says he’ll do things and never follows through. But the public, and Congress, should be on guard.
Congress should steer clear of legislation aimed at making it easier for public figures to win libel claims. Such legislation would be bad for political discourse, and would be unlikely to survive a court challenge.
One area where Trump could influence libel law is through his judicial nominees. So the Senate, which has the responsibility for approving judicial nominations, should carefully probe Trump nominees about their views on libel law and free speech.
Trump has demonstrated that he sees a free press and an independent judiciary as barriers to his authoritarian streak. His attack on libel law is a way to target both obstacles. While it’s easy to dismiss Trump’s efforts as political and uninformed, those who value free speech must take his threats seriously.