We previously discussed the erroneous portrayal of U.S. defamation laws by President Donald Trump. Trump has complained previously about the inability to sue his critics due to the protections recognized in the First Amendment. He has returned to that theme at Camp David this weekend and criticized our libel laws as too protective and restrictive. These comments were made in the wake of the failed effort of Trump to prevent the publication of the Michael Wolff’s book Fire and Fury: Inside the Trump White House. As discussed earlier, the threats made by Trump’s lawyer were facially weak, if not meritless, in claiming defamation. That was not a problem of our libel laws. The statements by Steven Bannon leading to the notice letter were clearly opinions and protected under even the weakest defamation law.
Trump lamented this weekend that if libel laws “were strong . . . you wouldn’t have things like that happen where you can say whatever comes into your head.” It was a chilling criticism of our defamation laws since most of us value the right to state our mind and our views. To the extent that Wolf has published false claims, he can be sued for defamation and should be sued for defamation. While the standard of proof is higher for public officials, it is not so high as to shield reckless or knowing publications of false information.
In February 2016, Trump began his call for changing libel laws during a rally in Texas when he said, “When they write purposely negative and horrible and false articles, we can sue them and win lots of money.” He added later that while he “loves” the free press, but “we ought to open up the libel laws, and I’m going to do that.”
The focus of the criticism appears to be the standard created in New York Times v. Sullivan, which is celebrated as one of the Court’s greatest decisions. The Supreme Court laid out the constitutional basis for libel laws roughly 50 years ago in a case that arose out of the attacks on Martin Luther King and freedom marchers. The New York Times ran an advertisement that referred to those abuses and claimed that King had been arrested seven times. In reality, King was arrested four times. While not expressly mentioned, Montgomery Public Safety commissioner, L.B. Sullivan sued for defamation and punitive damages. He won under Alabama law in a highly dubious state preceding that awarded $500,000. It was one of a slew of cases designed to drain the media financially for exposing segregationists.
The Supreme Court recognized it for what it was: a direct attack on the protections accorded to both free speech and the free press. Justice William Brennan explained how the First Amendment was meant to give the free press “breathing space” to play its critical role in our democratic society.
The result was not to bar lawsuits by politicians like Trump against the media but rather to require a higher showing of proof. He must prove that the media had “actual malice” where it had actual knowledge of the falsity of a statement or showed reckless disregard whether it was true or false.
The current controversy proves the wisdom, not the weakness, of our first amendment protections. Most of what the President has objected to in the book are statements of opinion about his mental stability — statements that are clearly opinion. There are valid questions raised about some of the hyperbole in the book like the questionable claim that 100 percent of White House staff members were concerned over Trump’s mental capacity or stability. I find that rather dubious as a claim. If there is material in the book that makes false statements of fact, Trump can sue. However, the costs could be high. It would open up discovery and a trial over the primary defense to defamation: truth. Wolff and Bannon could seek depositions of various members of the White House staff.
As many on the blog know, I hold a highly protective view of free speech with few exceptions. For that reason, the President’s criticism of people feeling free to “say whatever comes into your head” is unnerving. Free speech is the defining right our our constitutional system, particularly in stating criticism of our public figures. The laws are “strong” in that they create bright lines of protection for free speech while still allowing compelling cases to be proven in court. I hold no brief for the sources or the statements in this book. I have not read it. However, we would have a very different country is statements about a President mental acuity could be easily litigated as libel.
What do you think?