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Daniel Funke
By Daniel Funke July 15, 2020

Trump’s promise to ‘open up our libel laws’ is Stalled

In early 2016, President Donald Trump promised to make it easier to sue the press. Three and a half years later, he is no closer to fulfilling that promise.

The declaration came at a Fort Worth, Texas, rally in February 2016. Trump said he planned 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."

That's easier said than done. 

Thanks to the First Amendment and a landmark Supreme Court decision, the United States offers broad free speech protections for journalists. And states generally create their own libel laws, making it harder for sweeping changes on the federal level.

In New York Times v. Sullivan, the Supreme Court established the burden of proof that public officials and public figures must meet to win a libel suit. It's not enough for officials to show that a publication simply published false information about them — the court ruled that they must also prove the information was published with "actual malice." That means the journalist either knowingly published false information or did so with "reckless disregard" for the truth.

Historically, that standard has been tough to meet.

"In only a handful of cases over the last (few) decades have plaintiffs been successful in establishing the requisite actual malice to prove defamation," according to the Digital Media Law Project.

To change the burden of proof for public officials, Trump would need the Supreme Court to overturn Times v. Sullivan. Although the president has been successful in tilting the ideological leaning of the court, experts say the likelihood of that reversal is slim.

"With the exception of Justice Clarence Thomas, there seems to be little appetite on the court today to reconsider Sullivan or to eliminate the actual malice standard as it now applies to both public officials and public figures who sue for libel," said Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida, in an email. "The court also hasn't taken up a case so far that would address that issue during its next term."

Those slim odds haven't stopped Trump from suing the press himself.

In February and March, the president's campaign filed defamation lawsuits against the New York Times, the Washington Post and CNN. Those suits allege that the news outlets knowingly published false information about Trump and the investigation into Russian interference in the 2016 election.

A more recent lawsuit, filed against an NBC affiliate in Rhinelander, Wisc., in April, alleges that WJFW-TV defamed the president by airing an ad from Joe Biden's presidential campaign. The ad, which we rated False, was edited in a way that made it look like Trump said the coronavirus is Democrats' "new hoax."

First Amendment law experts have said those lawsuits, while they could produce a chilling effect for news outlets covering the president, likely do not meet the burden of proof set forth in Times v. Sullivan.

"These suits won't succeed on the merits," said Jonathan Peters, an assistant journalism professor at the University of Georgia and the press freedom correspondent for the Columbia Journalism Review, in an email. "They focus on opinion pieces, and there are broad First Amendment protections for statements of opinion and for exaggerated, figurative, and hyperbolic language. Those protections are not limitless, but they would apply here."

As of now, Trump has not managed to change the country's libel laws through a Supreme Court case, litigation or other means. And Congress has not proposed legislation that would alter existing libel laws. 

We rate this promise Stalled.

Our Sources

The Atlantic, "The True Danger of the Trump Campaign's Defamation Lawsuits," March 11, 2020

Digital Media Law Project, "Proving Fault: Actual Malice and Negligence," accessed July 10, 2020

Donald J. Trump for President Inc. v. CNN Broadcasting Inc., CNN Productions Inc. and CNN Interactive Group Inc., March 6, 2020

Donald J. Trump for President Inc. v. The New York Times Co., Feb. 26, 2020

Donald J. Trump for President Inc. v. Northland Television LLC, April 13, 2020

Donald J. Trump for President Inc. v. WP Co. LLC, March 2, 2020

Email from Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida, July 10, 2020

Email from Jonathan Peters, an assistant journalism professor at the University of Georgia and the press freedom correspondent for the Columbia Journalism Review, July 13, 2020

Freedom Forum Institute, "A Quick Guide to Libel Law," accessed July 13, 2020

The Hill, "Trump escalates fight against press with libel lawsuits," March 8, 2020

The New York Times, "Trump and Senate Republicans Celebrate Making the Courts More Conservative," Nov. 6, 2019

Oyez, Brett M. Kavanaugh, accessed July 10, 2020

Oyez, Neil Gorsuch, accessed July 10, 2020

Oyez, New York Times v. Sullivan, January 7, 1964

PolitiFact, "Ad Watch: Biden video twists Trump's words on coronavirus," March 15, 2020

Wisconsin Public Radio, "Trump Campaign Sues Northwoods TV Station For Airing COVID-19 Attack Ad," April 13, 2020

YouTube video, Feb. 26, 2016

Sarah Waychoff
By Sarah Waychoff April 20, 2017

Trump stalls on promise to open up libel laws

President Donald Trump promised to take his issues with mainstream media coverage of him to another level during the campaign.

Trump said multiple times that he would be in favor of changing the libel laws. Trump called out major news outlets at a Feb. 26, 2016, rally in Fort Worth, Texas, saying as president, he would "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 brought it up again once in office. He went after the "failing" New York Times after the newspaper reported on intercepted communications between Russian officials and associates of Trump's campaign.

"The failing @nytimes has disgraced the media world. Gotten me wrong for two solid years. Change libel laws?" he tweeted March 30.

We haven't seen Trump propose any specific action at this point.

It would take quite a lot to change the country's rules on libel.

The 1964 U.S. Supreme Court case New York Times Co. vs. Sullivan required public figures who are suing news organizations for libel to prove that false information was published knowingly and with malicious intent.

There isn't one single law that could be changed, other than the First Amendment and the protections it gives. Libel laws vary state by state, and there isn't a federal libel law.

In order for Trump to change the libel law, he would need to overturn the Supreme Court case. As we have previously mentioned, Trump also could lead an effort to amend the Constitution, but that doesn't seem likely either.  

We rate this promise Stalled.

Our Sources

Oyez, New York Times v. Sullivan, January 7, 1964

PolitiFact, Donald Trump wrong that New York Times can't be sued for a 'story that they know is false', March 1, 2016

The Washington Post, A Trump libel suit against the Times? Don't count on it succeeding., October 13, 2016

The New York Times, Can Libel Laws Be Changed Under Trump?, November 13, 2016

The Wall Street Journal, Can Trump 'Open Up' Libel Laws?, November 14, 2016

Twitter, Donald J. Trump tweet, March 30, 2017

The New York Times, Can Trump Change Libel Laws?, March 30, 2017

 

Allison Graves
By Allison Graves January 20, 2017

Trump says he wants to 'open up libel laws'

Donald Trump threw a lot of punches at the press during his presidential campaign, calling journalists "dishonest" and accusing the media of conspiring against him.

Behind the rhetoric was a threat to "open up" libel laws and make it easier for prominent figures like himself to sue news corporations.

"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 said at a February rally in Fort Worth, Texas. "We're going to open up those libel laws."

Achieving this campaign pledge is possible, but unlikely to gain the support it needs to achieve.

WHY HE'S PROMISING IT

Trump wants to "open up" libel laws to make it easier to sue the press.

On more than one occasion, he accused the press of writing falsehoods, rigging the election against him and being corrupt.

WHAT NEEDS TO HAPPEN

Public figures can win a libel suit against a media corporation only if the court finds the information was published with a legal standard known as "actual malice."

The actual malice precedent was established by the 1964 Supreme Court case New York Times Co. vs. Sullivan. It holds that the First Amendment generally protects journalists against false statements about public figures and officials. The case does not protect statements made with actual malice, which means a  person knowingly published false information or published information with "reckless disregard" of the truth.

Trump would need the Supreme Court to overturn Times vs. Sullivan.

Jane Kirtley, a professor of media ethics and law at the University of Minnesota, said that would be "almost impossible," even if Trump appoints a fairly conservative judge to the Supreme Court.

"The reality is that individuals of all viewpoints benefit from the protection of the actual malice standard," Kirtley said. "It really isn't a liberal/conservative/Democrat/Republican divide."

Trump also could lead an effort to amend the Constitution, but that doesn't seem likely either.

WHAT'S STANDING IN HIS WAY

The press in some states is protected by an even stronger standard.

"In some states, the state constitution's 'free press' clause has already been construed to provide even greater protection than the First Amendment," Kirtley said.   

Lyrissa Lidsky, a University of Florida media law professor, said building broad support to provide less freedom of expression will be hard because the issue cuts across partisan lines.

"Many people understand that freedom of expression cannot and should not depend upon the vagaries of which party is in power at the moment," she said. "And it isn't just the press that benefit from the protections of our libel laws. Anyone who posts, tweets, or speaks about public issues benefits from the constitutional protections against libel suits."

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