Bending Toward Justice: Donald Trump can’t change the libel laws, thankfully

Photo: Cheriss May/Nur via Getty Images

For someone who compulsively lies about other people as much as Donald Trump does, you’d think he would appreciate the benefits of having a high bar to proving libel and slander. But since Trump lives by the anti-Golden Rule — he’ll do whatever he wants to others and demand he be treated like royalty — Trump incessantly rails against the libel laws as unfair to him.

On Wednesday, Trump raised the stakes even higher, calling U.S. libel laws a “sham and a disgrace and do not represent American values and American fairness.” With no sense of self-awareness, Trump continued, “You can’t say things that are false, knowingly false, and be able to smile as money pours into your bank account.”

This is the man who made a living — and built a political career — out of falsely saying and tweeting that President Obama was not born in the U.S. and that his Hawaii birth certificate was a sham.

We’re going to “take a strong look” at libel laws, Trump told the assembled media, at the beginning of a cabinet meeting.

This isn’t the first time Trump has threatened to weaken libel laws, and it likely won’t be the last. The good news is that he’s just spitting in the wind. Presidents of the United States don’t have the ability to change our libel laws.

Libel and slander defined

Libel is the publication of false statement that injuries another person’s reputation, exposes that person to hatred, contempt or ridicule. Publication can be in print, signs, pictures, or any other physical form. A slander is made orally; only statements that are spoken amount to slander. Together, libel and slander are referred to as defamation.

Let’s focus on libel, as Trump is fixated on what is written about him in the media and in books. A claim for libel arises under state law (either statute, case law or both). There is no federal statute under which a plaintiff can sue for libel.

The details vary a bit from state to state, but in general, an ordinary person (meaning not a public official like Trump) can prove a libel claim when the weight of the evidence shows the defendant made a false statement in writing that had the effect of injuring the plaintiff’s reputation. A plaintiff is not required to show that the defendant acted intentionally or maliciously. Only that the defendant knew or should have known the statement was false.

Constitutional protections for libel and slander

For a public official like Trump, the evidentiary burden for proving libel is much higher, thanks to the U.S. Supreme Court’s landmark decision in New York Times vs. Sullivan. In that 1964 case, the Court ruled that the First and Fourteenth Amendments to the Constitution protect the media’s right to report on and criticize government officials.

Sometimes the media gets facts wrong, and publishes statements that are not true. But, the Supreme Court said, America had a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” As a result, honest factual errors that might hurt or damage officials’ reputations were not sufficient evidence for a public official to prove libel. Instead, a public official must show that the media acted with “actual malice” — meaning that it knew the published statements were false or acted with reckless disregard to whether the statements were false.

With that high burden, there aren’t many examples of public officials successfully suing for libel. In the handful of winning libel cases by public figures, the media was shown to have either entirely made up the story, or intentionally avoided taking investigatory steps to determine if the story was true or not.

At the moment, Trump is seething about Michael Wolff’s new book Fire and Fury: Inside the Trump White House. Trump’s personal lawyer sent Wolff’s publisher, Henry Holt, a letter demanding that the book be pulled from publication, and threatening a lawsuit for libel if the book was published. An attorney for the publisher calmly responded with her own letter, rejecting Trump’s demands. She also reminded Trump’s attorney that the President was obligated to preserve all “documents related to the contents of the book in the possession of President Trump, his family members, his businesses, his campaign, and his administration [which] will prove particularly relevant to our defense.” The publisher’s defense, of course, is that the statements in the book about Trump are true.

Trump is stuck with the First Amendment, for now

So what can Trump do to “loosen” libel laws? I posed that question to Leonard Niehoff, a Professor of Law at the University of Michigan, and an expert on media and the First Amendment. In an interview conducted by email, Niehoff explained:

In my view, the only thing President Trump could do to “loosen up libel laws” significantly, as he describes it, is to nominate a Supreme Court Justice (or two, or three, or four) who believes that New York Times vs. Sullivan should be reversed. I think this is a fool’s errand for several reasons.

First, the makeup of the Court would have to change dramatically. Second, there is no guarantee that appointing a “conservative” justice would help achieve this goal—after all, many of the Court’s most conservative justices have also been strong proponents of free expression. Chief Justice Rehnquist and Justice Scalia both wrote and joined in pro-free-speech decisions. Finally, and most importantly, Sullivan has become embedded in our jurisprudential DNA. Indeed, one of the most striking things about Sullivan is that it’s language—for example, its celebration of our commitment to speech that is “uninhibited, robust, and wide-open”—shows up in countless Supreme Court cases that have nothing to do with defamation.

As is often the case, Trump is full of anger and bluster, and there isn’t much he can do at all.