Donald Trump has made little effort to hide his distaste for the media. In a typical comment, he said at one of his rallies in South Carolina that the media are "absolutely dishonest. Absolute scum. Remember that. Scum. Scum. Totally dishonest people."
Now Trump is proposing changes to libel laws.
On the Feb. 28, 2016, edition of Fox News Sunday, host Chris Wallace asked the Republican presidential candidate to expand upon comments he’d made a few days earlier in Fort Worth, Texas -- that "one of the things I'm going to do if I win ... I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money."
Trump replied, "Well, in England, I can tell you, it's very much different and very much easier. I think it's very unfair when the New York Times can write a story that they know is false, that they virtually told me they know it's false, and I say, why don't you pull the story, and they say, we're not going to do that, because they can't basically be sued. And you (Wallace) can't be sued because can you say anything you want, and that's not fair."
Trump’s comments that media "basically can’t be sued" if they "write a story that they know as false" struck us as inaccurate, and when we checked with experts in media law, we found that current law already covers the situation Trump describes. (His campaign did not respond to two inquiries for this article.)
One immediate problem with Trump’s assertion is that he said a publication can’t be sued for publishing an article known to be false. In reality, there’s no barrier to filing a lawsuit against a media outlet for libel. "It is relatively easy to sue" in a case like this, said Lyrissa Lidsky, a University of Florida law professor who has written about media law.
Actually winning that lawsuit is a different matter, she added.
Still, while libel lawsuits are typically hard to win under United States law, Trump happened to cite the main type of case in which the media outlet would be at serious risk of losing the case -- that is, when it published something defamatory that it knew to be false.
Legal experts referred us to the unanimous 1964 U.S. Supreme Court decision in New York Times vs. Sullivan, which holds that the First Amendment generally protects even false statements about public officials and public figures -- but does not protect statements made with "actual malice," which means that the publication knew they were false and published the material anyway, or that they were published with reckless disregard to whether the material was true or false.
"Under New York Times vs. Sullivan, the type of knowing lie that Mr. Trump describes is not protected by the First Amendment," said Leonard M. Niehoff, a University of Michigan law professor and an attorney of counsel to the firm Honigman Miller Schwartz and Cohn LLP.
Roy S. Gutterman, director of the Tully Center for Free Speech at Syracuse University's S.I. Newhouse School of Public Communications, agreed that under Sullivan, "it is possible for a public-figure plaintiff to prove that the false statement was published either with knowledge of its falsity or reckless disregard for its truth."
Of course, the plaintiff in Trump’s example would have to do more than just assert their case -- they would have to prove it in court.
"A public figure or public official must plead and prove actual malice," said Jane E. Kirtley, a professor of media ethics and law at the University of Minnesota. "If he or she does, then yes, he or she could prevail, absent some other defense."
None of this is easy to do, of course, although someone like Trump would at least have significant resources to pursue such a case if he wished.
In the real world, proving actual malice is "not impossible," said David Ardia, who codirects the University of North Carolina’s Center for Media Law and Policy.
Ardia added that "if Trump were to win the presidency and attempted to change libel law to make it more favorable for public figures to win, he'd have to deal with the First Amendment, which provides robust protections for speech that is critical of public officials."
Trump said "the New York Times can write a story that they know is false" yet "they can't basically be sued."
United States libel laws for public figures are indeed tilted toward media outlets and against plaintiffs. However, contrary to what Trump said, plaintiffs can always sue if they wish. And they can certainly win in the scenario Trump cited -- if the New York Times knowingly published something false and defamatory. Indeed, the seminal Supreme Court decision on this subject explicitly says that media outlets are not protected from libel suits if they knew something was false but published it anyway. We rate the statement False.