On the campaign trail, then-candidate Donald Trump pledged to somehow “open up” American libel laws. “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,” said Trump at a February 2016 campaign event in Fort Worth, Tex.
In a media opportunity on Wednesday with Cabinet members, Trump returned to his campaign vow. He told his colleagues:
On a separate front, 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. If somebody says something that’s totally false, and knowingly false, that the person that has been abused, defamed, libeled will have meaningful recourse. Our current libel laws are a sham and a disgrace and do not represent American values or American fairness. So we’re going to take a strong look at that. We want fairness, can’t say things that are false, knowingly false, and be able to smile as money pours into your bank account. We’re going to take a very, very strong look at that and I think what the American people want to see is fairness.
The president moved on to the next topic without providing implementation details. That was fitting, considering the implementation details are almost impossible. The media-friendly libel interpretations that govern such cases in states across the country stem from the landmark 1964 case New York Times v. Sullivan, which ruled that public officials must demonstrate something called “actual malice” in proving libel. That means that an outlet would have to publish known falsehoods, or publish them with “reckless disregard” as to their truth or falsity. The standard bugs Trump because it makes it harder for him to go after his adversaries in the media.
Chucking the existing protections would require either a sea change in Supreme Court thinking on press freedoms, or a change to the Constitution. Someone should mention to the president that neither of those outcomes is accomplished through executive order.
Trump and Republican lawmakers just came away from a Camp David retreat at which they discussed their agenda for the coming year. As congressional correspondent Phil Mattingly noted on CNN, libel-law reforms did not make the list. “I can confirm that libel laws were not part of the 2018 agenda and didn’t really come up,” Mattingly said on CNN’s noon hour.
So why would Trump suddenly thrust the libel issue out there? Some possibilities:
- He has gotten bored with the same-old, same-old slams against the media. Time to make them hurt.
- He’d really like to sue Michael Wolff and publisher Henry Holt & Co. over the headline-making book “Fire and Fury: Inside the Trump White House.”
- He’s expressing solidarity with the defamation suit filed by his personal attorney Michael D. Cohen against BuzzFeed and Fusion GPS, the firm behind the Christopher Steele dossier.
- There’s no explanation; Trump is merely deciding now would be a good time to grouse about libel.
Just last year, Trump himself relied on generous libel protections to escape accountability for some nasty statements he’d made about Republican strategist Cheri Jacobus. After Jacobus criticized Trump on cable news, Trump tweeted that Jacobus “begged us for a job. We said no and she went hostile. A real dummy!” Among other slights, that is. The courts tossed the complaint. Actual malice wasn’t at issue here. The courts ruled that Trump’s statements were too vague to constitute defamation. But still: The loose-lipped Trump was saved by a legal system tilted toward freedom. Can someone please inform the president of the legal perils that await him should he succeed with his libel “reform”?
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