It’s unlikely Trump can change libel laws
Donald Trump hates lose unless he wins losing.
So, when it comes to libel laws, the president seems happy to portray himself as a victim.
On Sept. 5, in response to the publication of excerpts from author Bob Woodward’s new, critical book on his presidency, Trump called on “Washington politicians” to change our nation’s libel laws.
Earlier this year Trump called libel laws “a sham and a disgrace,” shortly after his lawyers had threatened a possible libel suit in an unsuccessful attempt to block publication of Michael Wolff’s “Fire and Fury: Inside the Trump White House.” He then renewed his campaign promise to “open up” America’s libel laws, pledging “to take a strong look” at them.
Neither Trump nor Congress can easily change defamation laws, and his own inflammatory rhetoric would most certainly be a casualty were libel laws toughened.
Trump has never brought a successful defamation case in court. Still, his lawsuits, including litigation deemed frivolous, are an effective tool for attacking his critics, forcing them to spend lots of time and money defending themselves.
A 2016 USA Today analysis found that Trump and his businesses had been involved in more than 4,000 lawsuits over 30 years in U.S. state and federal courts, including seven speech-related actions brought against media outlets and other critics. It and a subsequent report commissioned by the American Bar Association showed these actions were part of a broader attack on the media that included countless ceaseand-desist letters and threats of much more litigation.
The ABA report, prepared by Susan Seager, a Los Angeles-based First Amendment lawyer, concluded that four of the seven actions were dismissed on the merits, two were withdrawn voluntarily, and that Trump won one arbitration case against a former Miss Pennsylvania by default. Seager said there is some question whether the defendant paid any of the $5-million judgment against her before or after Trump’s lawyers filed a “Notice of Satisfaction” that ended that case.
Trump’s ability to change libel laws is limited by the First Amendment, the Supreme Court, and the fact that libel cases are decided in state courts interpreting the law of that state. The First Amendment prohibits Congress from passing any law that abridges “the freedom of speech, or of the press,” and the 14th Amendment extends that prohibition to the states.
The Supreme Court, in a 1961 case, laid down a “federal rule” requiring public officials to prove “actual malice” — that a statement was made with “the knowledge that it was false or with reckless disregard of whether it was false or not.” That landmark, 9-0 decision in New York Times Co. v. Sullivan, has been extended in subsequent cases to include “public figures” as well as “public officials.”
While the president’s most prominent libel lawyer, Charles Harder, has effectively used privacy laws when suing media companies on behalf of celebrities, including Terry Bollea (a.k.a. Hulk Hogan), it is difficult to see how Trump could successfully assert his right to privacy extends to his actions in office or while campaigning.
Nor does the Supreme Court seem likely to reverse its libel rulings. Although Justice Antonin Scalia, who died in 2016, told me in a 2005 interview that, given the chance, he would have voted to reverse Sullivan, no sitting justice has voiced similar sentiments. Congress’ commitment to the First Amendment and that of the Supreme Court seem secure, even with the addition to by of a new justice to succeed Anthony Kennedy.
Trump’s tweet last week asked, “Isn’t it a shame that someone can write an article or book, totally make up stories and form a picture of a person that is literally the exact opposite of the fact, and get away with it without retribution or cost.”
What Trump describes is a near-perfect definition of “actual malice,” and as such, it is already covered by the 3550 NW 77 CT. Palmetto & 36 St., Exit West @ NW 36 St. To 79 Ave., Left to 2nd Left (NW 77 Ct.) Hours: Mon-Sat 9-6, Sun 11-5 (305) 591-4141
15761 SHERIDAN ST. In Lowes Cinemark Plaza, West of I-75 Hours: Mon-Fri 10-8, Sat 9-6, Sun 11-5 (954) 689-0510 Sullivan decision. In addition, Sullivan and the precedents the court relied on in reaching its decision protect the president from suits asserting his most outrageous attacks are themselves libelous.
“Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth,” Justice William Brennan wrote in 12770 KENDALL DR.
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His opinion went on to accept the fact that a politician “at times resorts to exaggeration, to vilification” and even to “false statement.”
There is no reason to believe President Trump really wants to do anything that would jeopardize that protection. 8791 SW 133 ST. Across from The Falls, Next to Total Wine Hours: Mon-Fri 9-8, Sat 9-6, Sun 11-5 (305) 233-3233 290 E. OAKLAND PK BLVD. One Mile East of I-95 on South Side Hours: Mon-Fri 10-8, Sat 9-6, Sun 11-5 (954) 537-1417 President Donald Trump called on “Washington politicians” to change our nation’s libel laws.
Norman Pearlstine is Times’ executive editor.
The
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