This post, originally published Oct. 11, 2017, has been updated with President Trump's remarks Wednesday.
President Trump displayed a fundamental misunderstanding of existing libel standards Jan. 10 when he said during a televised Cabinet meeting there should be “meaningful recourse in our courts” if a news outlet publishes “something that's totally false and knowingly false.”
“He's right — and that's what the law is now,” said George Freeman, executive director of the Media Law Resource Center.
Asserting that “our current libel laws are a sham and a disgrace and do not represent American values or American fairness,” the president pledged to “take a very strong look at that.” Yet these “current libel laws” Trump loathes do not exist — not as he described them, anyway.
“You can't say things that are false — knowingly false — and be able to smile as money pours into your bank account,” Trump said, as if exposing the way the media works now.
Existing legal standards already prohibit news outlets from publishing harmful claims they know to be false. Trump would have voters believe journalists operate with total impunity, but news outlets that defame or invade the privacy of the people they cover can be sued into extinction. Just ask Gawker, which went bankrupt and shuttered last year after losing a case brought by Hulk Hogan.
Rolling Stone, which already has settled one libel suit resulting from a retracted report about sexual assault at the University of Virginia, put its majority ownership stake on the block in September, two days before a federal appeals court said a second lawsuit could move forward.
The consequences of bad reporting can be severe — contrary to the president's depiction of a Wild West environment. Even when mistakes are minor and there is no legal risk, news outlets often hold themselves — and one another — accountable.
The president's remarks Wednesday echoed his October declaration that “it's frankly disgusting the way the press is able to write whatever they want to write, and people should look into it.”
Trump revived his long-standing libel grievance one day after his personal attorney, Michael Cohen, filed a defamation suit against BuzzFeed.
Trump's position on the freedom that the press does enjoy is there is too much of it. He tweeted in October about challenging NBC's broadcast license and raised the specter of a congressional investigation of “the Fake News Networks in OUR country.”
Just to give you a sense of how extreme Trump's view really is: His own spokeswoman, Sarah Huckabee Sanders — who can rip the media with the best of them — declined in an Oct. 5 briefing to reinforce the idea that a congressional probe could be warranted. Instead, she focused on Trump's frustration with news outlets' coverage priorities and, when pressed about whether the president really wants an investigation, suggested he might not have been serious.
“I don't know that that's the case,” Sanders said, “but I do think that we should call on all media to a higher standard.”
I do not know, either. As I have written before, if Trump were serious about, say, weakening libel protections for journalists — something he talked about as a candidate — the best way to follow through would be to nominate federal judges willing to reverse decades of legal precedent. His pick for the Supreme Court, Neil M. Gorsuch, did not fit the bill.
Trump's inaction does not mean he is not hostile to the First Amendment, however. He has said before that he likes England's libel standards better than the United States'.