When he ran for president in 2016, Donald Trump promised to “open up our libel laws” to make it easier to sue anyone who said something mean about him. He wanted to be able to sue news organizations “so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”
Like many of Trump’s promises, he obviously wasn’t serious about accomplishing it, and he never attempted to follow through on it. But there are already some important libel lawsuits in progress, using existing laws to go after Trump and his allies for the damaging lies they have told — and there ought to be more of them.
At Tuesday’s hearing of the Jan. 6 select committee, Georgia election worker Shaye Moss and her mother, Ruby Freeman, described how their lives had been upended by calumny directed at them by Trump and lawyer Rudy Giuliani. If you watched this and asked, “Why don’t they sue?” you had the right instinct.
As it happens, Moss and Freeman have sued multiple people and organizations for repeating the lie that they were involved in a conspiracy to steal the 2020 election. Their suits allege that Giuliani and a number of news outlets, including the far-right One America News (OAN), repeatedly accused them of criminal conduct despite knowing their claims were false.
They’ve already reached a settlement with OAN, but their suits against Giuliani and the website Gateway Pundit are pending.
Many other defamation suits related to Republican election lies are still in process. The most significant may be those of Dominion Voting Systems, whose machines are at the heart of a whole complex of wild conspiracy theories, some involving Italian satellites and the ghost of Hugo Chávez.
Just last week, a judge in Delaware allowed two Dominion suits to go forward, one against the Murdoch family and Fox Corp. and one against Newsmax. The suits seek $1.6 billion from each, charging that the networks knowingly repeated lies about Dominion that damaged its business. Dominion and its competitor Smartmatic have also filed suits against Giuliani, “Kraken” lawyer Sidney Powell, unhinged pillow monger Mike Lindell, and various other right-wing outlets and personalities.
All of this might sound like an absurd free-for-all, with lawsuits flying in all directions. But our system has a way to deal with lawsuits that are genuinely frivolous. They may get thrown out of court quickly or they may go all the way to trial, but they usually lose.
Furthermore, we should be able to agree that the basic structure of libel law as established by the Supreme Court — that it’s harder for a public figure to recover damages than an ordinary citizen — is a good one. Public figures have more means to get their stories across, and when you become a celebrity or run for office, you accept that you’ll get a lot of criticism (even if Trump can’t tolerate it).
Which is why it’s particularly odious that Trump, Giuliani and their supporters went after regular people such as Moss and Freeman, knowing full well it would mean they’d be targeted for harassment, threats and perhaps even violence.
This is not to say justice is always served by the civil legal system. But when those who would seek to hold Trump or the likes of Giuliani accountable, the power dynamic can be equalized — or nearly so.
Ordinarily, the system makes it extremely difficult for those without money and power to prevail against those who have money and power. In this case, companies such as Dominion and Smartmatic may not be as big as Fox Corp., but they still have resources to fight. And when it comes to ordinary people such as Moss and Freeman, because so many liberals (and some conservatives) loathe Trump and all he represents, they can find skilled and effective representation without having to pay for it.
The two Georgia women are being represented in their suits by a well-funded nonprofit organization, which means that they can make their case even though they’re not wealthy. And though a financial settlement will never adequately compensate them for what they went through (and their willingness to bravely testify almost certainly means they’ll face more racist vitriol and death threats), a large financial penalty might make Giuliani or OAN think twice before they libel someone else.
It would be naive to argue that lawsuits could persuade Trump himself to start telling the truth. And the reason he isn’t a defendant in these particular suits is that other people and organizations made more direct and unambiguous public claims that can be litigated. But there seem to be plenty of grounds for any number of people to sue Trump, if they have the stamina to attempt it.
Which they ought to do. One of the many toxic effects of Trump’s rule is that he convinced so many on the right that there ought to be no consequences for any misdeed they might contemplate: corruption, self-dealing, encouraging violence, attacking democracy, or lying relentlessly about anyone and everything. It’s long past time those who do these things started feeling consequences. Dragging them into court to defend their lies won’t solve the problem by itself, but it’s a place to start.