In his remarks today at a rally in Fort Worth, Tex., Donald Trump knew he’d make news. “I’ve never said this before,” he declared.
We’ll await the word of the Washington Post Fact Checker on the integrity of the statement, but Trump did appear to be veering into a new talking point. A media-law talking point, that is:
One of the things I’m going to do, and this is going to make it tougher for me…but one of the things I’m going to do if I win…is I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So that when the New York Times writes a hit piece, which is a total disgrace, or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.
An attack on media law is a logical extension of Trump’s rhetoric, not to mention a threat to American democracy. After all, he has displayed a highly undemocratic annoyance with the idea that the media is independent. For months he has been attempting to get the cameras at his rallies to properly pan around the thronged arenas, the better to capture his out-of-control popularity, even when the camera operators’ job is to stay on him. He has ridiculed reporter after reporter for reporting the facts of Trump’s march through the GOP primaries. Whenever he has been busted out by investigative journalism, he has attacked the institutions that have compiled it.
Though Trump in his remarks issued no specifics — he never does — about the shortcomings of existing policy or the exact changes he’d make, he appears to be upset with the degree to which media outlets are protected by longstanding First Amendment law. And protected they are, especially when reporting on people like Donald Trump, the sort of person that libel law sees as “public figures.” Media types can go after public figures with a great deal of aggressiveness because the law of the land sees those in the public eye as inviting scrutiny and thrusting themselves into the glare of accountability.
Wind the clock back to March 1964, when the U.S. Supreme Court decided the landmark case New York Times v. Sullivan. At issue was not an article but rather an advertisement in a 1960 edition of the New York Times that an Alabama elected official, L.B. Sullivan, found particularly injurious. The record concluded that some of the criticisms in the advertisement were inaccurate.
No matter, wrote William J. Brennan for the majority, in an opinion that appeared to foresee Trump himself:
Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
From this decision has arisen something of a two-tiered libel arrangement throughout the land. There’s one standard for Joe Schmo, who has to prove only that a media outlet acted with negligence in order to secure a favorable judgment. For public figures — they have to prove a standard known as “actual malice,” that the offending statement “was made with knowledge of its falsity or with reckless disregard of whether it was true or false.”
What’s so comical and pathetic about Trump is how, as per usual, he speaks so loudly without knowing anything about the topic. Roll back the tape on one part of his riff: “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”
Trump wouldn’t need to “open up our libel laws” in order to accomplish this end. As currently laid out, our libel laws enable him to do just that. In fact, the “actual malice” standard discussed above applies almost precisely to those instances when news outlets write “purposely negative and horrible and false articles.”
Read carefully, in other words, Trump’s words delivered a thundering endorsement of the status quo in libel jurisprudence. Surely he didn’t mean as much — if elected he would doubtless move ahead with this plan to make it harder for news outlets to call him out. Though for a guy who spends much of his day writing over-the-top slams of other public officials, maybe Trump should give thanks for the First Amendment.