Donald Trump said that when he became president, it would be easier to sue media companies “and win lots of money.” As if on cue, first lady Melania Trump recovered a reported $2.9 million in a libel suit Wednesday, Day 82 of her husband's presidency.
The victory came with a huge asterisk, however: The settlement was approved by a court in England, where libel protections for journalists are far weaker than in the United States.
The lawsuit centered on an article published last summer by the Daily Mail tabloid, part of which addressed an unsubstantiated report in a Slovenian magazine that Melania Trump had doubled as a sex worker early in her modeling career.
Unlike several obscure blogs that treated the salacious allegation as truth, the Daily Mail conducted its own investigation and reported that “there is no evidence to back up these startling claims.” The newspaper included a forceful denial by the man who ran the modeling agency for which Trump worked.
Nevertheless, Trump sued the Daily Mail in London and in the United States, since the article could be read online. A court in Maryland threw out the case on jurisdictional grounds, so Trump refiled in New York in February.
It is almost impossible to imagine that Trump would have succeeded in a U.S. court. The Daily Mail did not report that she was a sex worker — again, it said “there is no evidence” that she was — but even if the tabloid had printed such a claim, Trump would have had to prove not only that the claim was false but also that it was published with “actual malice.”
According to the Legal Information Institute at Cornell University Law School, “Actual malice means that a statement was made with knowledge that it was false or with reckless disregard of whether or not it was false.”
In the U.S. legal system, the “actual malice” standard protects journalists from losing libel suits simply because of honest mistakes. But there is no such protection in England, as I wrote last fall, when Donald Trump said he wanted U.S. libel standards to mirror England's:
News outlets must “prove that the words complained of were true or substantially true.” There is no allowance for innocent mistakes, and it is possible for media companies to lose cases based on statements that are logical but cannot be proven in court.
Until recently, English law was so tough on the media that disgruntled subjects of news reports could use the country's court system to carry out what the New York legislature called “libel terrorism.” That provocative phrase appeared in the title of a bill passed in New York in 2008 that created the model for the federal Speech Act of 2010. “Libel terrorism” refers to the act of suppressing press freedom by bringing lawsuits against American journalists in foreign countries, such as Britain.
Appearing before London's High Court, John Kelly, an attorney for Melania Trump, made the following argument: “The suggestion that [sex-worker] allegations even merit investigation is deeply offensive and has caused a great deal of upset and distress to the claimant.”
That would never fly in the United States. The idea that a news outlet could lose a libel case for merely investigating a claim — and ultimately deeming it baseless — is completely antithetical to First Amendment principles.
We don't know for sure whether this would have been a winning argument in London, since the Daily Mail agreed to settle before the point of a court ruling. But the fact that the tabloid was willing to pay damages suggests that it sensed trouble.
The Trumps can enjoy this legal victory and their additional millions, but the case does not have much, if any, bearing on the president's perpetual feud with the U.S. media. He would have to dramatically alter U.S. libel standards to achieve similar results in his own country, and he does not seem serious about doing so.