We interrupt our regularly scheduled review of markets and economics to consider President Trump’s latest comments on US libel laws. His remarks on Wednesday suggest that the White House will lead a new effort to revise long-standing legal standards that are directly related to the Constitution’s First Amendment rights and freedom of the press – the bedrock of US democracy. The administration doesn’t have the power to rewrite libel laws and it’s doubtful that the Supreme Court will be swayed to revisit the subject. That leaves the possibility of a constitutional amendment to effect any revision, but that’s even more unlikely, if only because introducing legislation through this channel is a long and winding road.
The prospect may be dim for rewriting libel laws, but the stakes are still high and so it’s worth studying the topic. Let’s start by recognizing that Trump as a private citizen has long been waging a war of words against the media. That includes bringing multiple lawsuits over the years to limit free speech by journalists and critics – efforts that have failed, at least so far.
Trump revisited the subject yesterday, which isn’t surprising. The only difference now is that his commentary carries the weight of a sitting President. “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,” he said in a cabinet meeting. If there was any doubt of his intentions, he clarified his thinking in no uncertain terms by calling the current libel laws in the US a “sham.”
It’s hard not to notice that the renewed attacks on First Amendment rights come in the wake of a new book — Fire and Fury: Inside the Trump White House — that paints a critical portrait of the President. Note, too, that Trump’s personal lawyer this week filed a lawsuit against Buzzfeed, a news site, for publishing information that allegedly defamed the President.
Trump’s efforts at curtailing a free press are an ongoing project, but the odds are low that he’ll succeed. A key reason is bound up with the landmark 1964 case New York Times v. Sullivan, which gave the First Amendment’s “bold words full meaning,” Anthony Lewis wrote in Make No Law: The Sullivan Case and the First Amendment, a popular history of how the case unfolded and reshaped libel law in the US.
In the wake of this ruling, successfully wining a libel suit for a public figure against the media has become extremely difficult, and for good reason: public debate is essential to the functioning of democracy. It’s no accident that authoritarian governments around the world target journalists to advance policies and laws that would be vulnerable if the media was allowed to operate freely.
Free speech doesn’t insure that truth is always held in high esteem. But in the free market of ideas, it’s wise for a government to allow wide latitude for public discussion. With that in mind, limiting the rights of the press in the US faces a tough challenge from a legal perspective, thanks to the existing libel laws and Trump and other public figures face a high hurdle for winning in court. The critical issue for such plaintiffs revolves around the so-called fault requirement, which requires proof that a media report in question reflects negligence and/or malice – publishing material that is knowingly false in a reckless manner.
That’s a high standard and very few public figures have been able to convince courts that they were in fact defamed in the media. Part of the reasoning for this standard is that being subject to criticism and debate is the price tag for being a public figure. In addition, public figures have recourse to respond to any criticism via the media by way of press conferences, etc. On that score, no one has greater media access than a US President. Indeed, is there anyone in the US who is not familiar with Trump’s preferences for policy and other matters? He may be subject to intense criticism, but the give and take is a two-way street. All the more so with the rise of social media, which gives the President a powerful media resource that he controls directly.
The fact that Trump’s failure to win libel lawsuits prior to his election, when his celebrity status was on a lower rung, speaks volumes about the challenges he now faces as President. Perhaps that also explains his growing frustration with his treatment in the press these days. But after just one year in office, there’s still a long road ahead, and it’s likely that a fair share of the press that’s to come will be less than favorable.
Meantime, Trump’s latest comments appear to mark a new plan to upend a US precedent that is widely assumed to be impervious to populist impulses. That’s a reasonable assumption since a victory for the administration appears improbable without the support of the Supreme Court to revisit Times v. Sullivan.
Anything’s possible, of course, but the libel precedent for public figures will almost certainly endure. That will be loss for Trump’s media war – and a win for the First Amendment and US democracy.