Constitutional Law, Free Speech, Politics

Trump Again Suggests U.S. Libel Laws Need To Change

Freedom_of_Speechdonald_trump_president-elect_portrait_croppedWe 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?

 

156 thoughts on “Trump Again Suggests U.S. Libel Laws Need To Change”

  1. The Wolff book is red meat for media chasers. I couldn’t care less what the Washington DC crowd is all worked up about. Usually, a month later, it is shown to be largely inconsequential. We need a return to gravitas, and focus on long-term policy choices.

    1. Spot-on Pbinca re “The Wolff book is red meat for media chasers.”

      It serves as another distraction while genuine issues are ignored. Like the increasing drum beats by the war mongering moron Nikki Haley.

      That foolish tool is like a windup doll programmed to recite talking points

      ” ‘Stop the support for terrorism. Stop giving billions of our money to killers and dictators. Stop taking our wealth and spending it on foreign fighters and proxy wars. Think of us,'”

      Uh, dummy, that’s what U.S. citizens want as well!

      Didn’t Trump run on not interfering with other states?

      .

      2. “Trump interfering with other states” …it wasn’t expected…by whom? He’s long been known as a dishonest man.

      3. In what way did Trump run on not interfering with other states? I don’t get your comment.

      4. Yet somehow ISIS has been eviscerated and the two Koreas are resuming talks that went dormant under Doormat in Chief Barack Obama. That said, give me a war mongering moron any day over Susan Rice Occupying Manhattan office space and filing unmasking requests against US citizens while pretending to be US ambassador to the UN.

    2. A month from now Bannon will be testifyin about da people he said committed crimes. No forgettin this bookie

        1. That’s not what I heard said by Wolff. All I’ve heard is his defense of the book.

          1. Pick up a copy and read the epilogue. I believe on page 10 of the epilogue you will find language where Wolff admits his information is unvetted and unverified, and that it’s up to the reader to figure out which parts are true and which are not.

            You’ll find more intellectual honesty in The Hobbit than you will Wolff’s book.

  2. ” you wouldn’t have things like that happen where you can say whatever comes into your head.”

    Oh no, my twitter feed just went dead!–DJ Trump

  3. Free speech dose not follow that one a yell fire while inside a movie theatre when the yeller knows quite well that there isn’t any.
    The recent Wolff book cannot possibly be totally accurate with the inner workings of the W H. His claim to fame was having these three momentous hours with the P resulting in accurate verbatim- which is nonsense.
    Those sign in /out logs ought to be checked to really see if he was even there or if he was, how long of a stay, and who invited him .
    Should he and the publisher had given copy of the book, for any and all remarks, to the WH?
    Their rush for monetary reward was too much a temptation.

    1. You are comparing apples to oranges Bernard. The “yelling fire in a movie theater” has nothing to do with libel. Both are free speech issues, but that is where the similarity ends. Each deals with a different issue or question concering free speech. The “yelling fire” standard is not applicable to questions of libel.

  5. So how do you rein in a belligerent, lying, deranged corporate press hellbent to fundamentally change society for the worse? Demerits?

    4. Maybe Rupert Murdoch could fund buyouts of NYT, WaPo, etc., and merge them with Fox?

    6. Take away Murdock’s ciitizenship and send him back to Dingoville-Down-Under along with his children.

    7. Great question! When the media makes up their reporting should there be a penalty of some sort? Morning Joe and fiancé (are they ever getting married?) would have to be penalized every day. How does anyone fight 5-6 people around a table chatting for hours every morning? Or authors lying in books?

  6. I agree with Trump. Trump would be the first one in court defending his incessant lies, accusations, blather, name calling, etc. Of course, hypocrite that he is, Trump would pardon himself, excuse himself, claim executive privilege, etc. He must be using Erdogan as a model; or maybe Putin.

  7. While the standard of proof is higher for public officials,

    If we should demand that no one is held above the law, then shouldn’t public officials also not be held below it? I personally have no problem holding them all to a higher standard, but is it constitutional for a citizen to lose their 14th amendment protections because they become a public official?

    1. I find it a tad annoying when public officials, who serve in roles that have explicit Congressional oversight, are called before Congress and then plead the Fifth.

      If libel could be invoked by any president, it would too easily slide into a slippery slope of censorship. Artists, satirists, political cartoonists, pundits, etc. could all become subject to empty litigation, assuming we have a thin-skinned, misdirecting narcissist in office.

      A private citizen in a public job doesn’t lose his or her rights, but other rules come into play. Trump and his lawyers have all said that presidents are immune from lawsuits. Is that true of a private citizen? It’s fuzzy all around.

      1. Thanks Dave. Our rights as private citizens seem to be a secondary layer of protection for public servants. The first being their unique position working on that side of the legal ledger and all the forces and resources they have at their disposal. What if a public servant is not afforded that secondary layer of protection for alleged conduct under the color of the public trust? No 5th amendment protections for instance if the alleged conduct was related to their public duties.

    2. Do you have ANY idea what the 14th Amendment is about? Who is losing “life, liberty, or property”? Certainly not Trump; he is lining his pockets with working people’s money.

      2. “Property”? Federal Government has seized property for various reasons. The most unpopular is wetlands. If a puddle gets significantly larger it is now wetlands. If a river changes course and runs through your property, the land between becomes wetlands. The seizure of state-owned property by federal government stops any prior use of that land (Obama in Utah), such as mining.

  9. Why spend ink on articles like this? The public is too thick to appreciate it, and the informed here don’t need to be told.

    Meanwhile, the 1% and their well-off junior partners are busily advancing the Police United States of Murrica.

    But at least now we know this “important” information/opinion.

  10. If Donald would stop tweeting the media would go out of business. The Mesotheliumo business would go away. The pillow ads would disappear.

    Donald: Stop Tweeting!

  11. Andrewworkshop said, “There’s a very equitable and easy solution to fake news that’s forthcoming.”

    Intriguing. We have every reason to believe that Steve Bannon is not a member of the deep-state conspiracy to conduct a slow-as-molasses coup d’état against Trump. Unless, that is, Bannon and Breitbart News having been running a false-flag operation to get Trump elected, in the first place, and then to defend Trump against the Russia investigation by spinning the deep-state conspiracy theory of a slow-as-molasses coup d’état against Trump in the second place. And then, in the third place, Bannon pretends to be deep in the throes of Trump Derangement Syndrome while talking to Michael Wolff in just such a way as to snooker Wolff into publishing a fake-news book about the alleged TDS epidemic raging through the Trump White House. Intriguing. Where is this hypothesis headed?

    The only way to fight fake news is with fake news??? What better Fire-and-Fury-jumper might there be than Steve Bannon??? Mein Gott in Himmel. It’s brilliant. Isn’t it? The Greatest Head-Fake in the History of Fake News.

    And then there’s Robert Swan Mueller III. [Uh-oh! Spaghetti-Os].

  12. I have not seen a paper copy or this so called “book” or read on-line any of its contents other than short diatribes. But the dork author was on tv yesterday and is clearly unfit to print. There used to be some phrase out of the New York Times: All the news that is fit to print.

    Regarding defamation laws. Public figures can be defamed. We are seeing it by the minute and hour on CNN.

    Trump needs his own TV news channel instead of his tweets.

    With all of his money he could buy out Fox News and then have his kid run it.

    1. L2,

      Minor correction. The NYT slogan was: “All The News That Fits The Print”.

      1. NYT slogan: I always said it was, “All the news that fits, we print.” (There’s a double entendre in there>)

    2. Liberty2nd said, “Regarding defamation laws. Public figures can be defamed. We are seeing it by the minute and hour on CNN.”

      From an article in The Hill:

      “In comments reported by CNN, [Donald] Trump Jr. slammed what he perceives as a bias within the FBI and the special counsel’s office, which is conducting a probe into Russia’s election meddling and any potential ties between Trump campaign staff members and Moscow.

      The president’s son, citing anti-Trump text messages sent by an FBI agent formerly working on the Russia probe, said “there’d be revolution in the streets” if this happened to former President Obama.

      “My father talked about a rigged system throughout the campaign, and people were like, ‘Oh, what are you talking about?’ But it is. And you’re seeing it,” Trump Jr. told the Turning Point USA Student Action Summit, according to the news network.

      “There is and there are people at the highest levels of government that don’t want to let America be America.”

      So, Liberty2nd, why isn’t there revolution in the streets? Because people at the highest levels of government won’t let America be America? Because people at the highest levels of government are suppressing revolution in the streets? Because America is revolution in the streets? So why isn’t there revolution in the streets, Liberty2nd?

    3. “Trump needs his own TV news channel instead of his tweets.
      With all of his money he could buy out Fox News and then have his kid run it.”

      The money was Rupert Murdoch’s, but this has already happened. They don’t have Trump kids running it, as they don’t particularly have organizational (or other) skills.

      On the print side, Trump effectively also controls the National Enquirer in addition to WSJ. So access to the bottom as well as the top of the electorate.

  13. Actually, let’s open up those libel laws. I’m sure President Obama would love to sue the top charlatan of the Birther movement.

    1. The birther movement helped Obama’s cause. Or did you miss that memo?

      1. Intriguing. Trump was a premature Obama holdover. Obama holdovers were the original members of the deep-state conspiracy to conduct a slow-as-molasses coup d’état against Trump. Ergo Trump was a premature member of the deep-state coup d’état against Trump. Which, in turn, explains why that attempted coup is slow as molasses. Intriguing.

  15. So whose going to go States Evidence first? Now the shill has been disposed of. Amazon wants $20 per copy so Bezo will make a killing ripping off the left and they well deserve it but it detracts them from the arduous chore of protecting their whole house of cards.

    Will Huma Gotcha take the chance of a couple of decades bunking with diesels or ….. take the chance of being the first hand knowledge fly on the wall? the targets of opportunity are plentiful and unprotected which brings up another point.

    If Huma gotcha asks for witness protection who will provide it? Certainly not the Washington Field Office until their house is cleaned up. Secret Service as they have an oar or two in the water on this one. US Marshals or even US military. No matter how it turns out Huma is now a target herself of more than legal action.

    Folllow that up with all the bits and pieces represented by the staffs from Arkansas, the White House, The Senate, The State Department the DNC and the two campaign committees and the Clinton Foundation. and all the connecting branches to other entities.

    Some no doubt have CYA documents squirreled away but many are open to legal action and public exposure and not just in this one courntry.

    So if you were Huma Gotcha who would you choose? The people you can most hurt and conversely if not able to testify not hurt?

    She does this right it’s a deal perhaps a pardon a book deal and a movie. deal. If not…..she becomes a target of opportunity one in a long line. No story book action heroes to save her butt this time.

    2. Michael Aarethun asked, “So who’s going to turn state’s evidence first?”

      If only guessing were allowed, which it isn’t of course, but supposing otherwise, I’d guess that The POTUS, Donald John Trump, will turn States Evidence first–assuming that he is not already the cooperating witness in the Trump camp that our host, Prof. Turley, was speculating about last week or whenever it was.

      Talk about a blond bombshell fake news report. Whoa, Nellie. They say Trump wants to talk to Mueller. They didn’t say why Trump wants to talk to Mueller. And Mueller hasn’t said a word about wanting to talk to Trump. What’s it mean? What’s it mean?

  16. JT and everyone else are – as usual – reading way to much into this in an attempt to boost their own nameplate. Ladies, Gents, and Others, if you haven’t pulled up your adult under attire do do. Then realize, Trump is the troll in chief. He plays the media like a fiddle and they are too stupid to even realize it. They’ll play this one for a good week or until the next big thing comes along.

    In the meantime his strategy is genius as it is atypical. Take Korea for example. He’s broken the mold. For the first time in who knows how long he’s basically told North Korea to go f themselves. The result? For the first time since 2014 North and South Korea are meeting on the DMZ. Not too shabby.

    Trump’s strategy involves occupying the extreme position of an argument thus driving parties toward the middle. We’ve never seen that before but it seems to be working.

    How does that play out with libel laws? There’s a very equitable and easy solution to fake news that’s forthcoming.

      1. Michael Aarethum typed, “. . . add the letter s to the word postiion . . . ”

        Okay, Micheal. I’ll take you up on it. Postiions. Or Spostiion. Or Postision.

        I can’t tell which one you intended, Michael.

    2. I was just talking to my fellow simpleton warehouse workers about this today. And we can all see it. So obvious. We think it’s fantastic and very clever but almost like some kind of magic? It’s so obvious. And it still works?

    3. Playing the end in favor of the middle yields . . . ??? Spoiler alert???

  17. Pingback: Trump Again Suggests U.S. Libel Law Need To Change | Top 100 Blog Review

  18. turley: “…showed reckless disregard whether it was true or false.”

    going off second-hand info, wolff apparently writes something to the effect that he doesn’t know if claims contained in book are true or not…

    reckless disregard.

  19. The man that insults and makes false claims about everyone. wants to be able to sue. Suppose Ted Cruz sued him? The malice part ought to be the easiest component of the charge to prove.

    1. Yet again you offer no proof, no facts just personal opinion which leaves us free to disregard it as a statement based on nothing and safely disregard it. A valid debate requires such evidence or the original statement dies a well deserved death. Your system may sound well and good in the pages of an equally spurious news non-source but has no business in a forum such as this one… if it had any business at all in any forum we have yet to see a smidgen but constantly see the opposite. Therefore and as ad tedium usual REJECTED./

        1. Your rejection is of no importance your continued refusal to deal in factual evidence speaks for itself. I had ribs southern style not texas style do dyou know the difference? One is burn the other isn’t.

          1. Trump insult the universe daily. Attempting to prove it to you is time that I would never get back. If the world knows something and you don’t, it’s not the world’s problem.

            2. You exaggerate, Enigma.
              Trump has not (yet) even insulted everyone on this planet.
              Now you accuse him of insulting everyone in the UNIVERSE!?😉
              I don’t think he’s even tweeted to Voyerager I, which left our solar system a few years ago.

              1. Tom Nash resembles the insurance salesmen who sell whole life policies instead of a term policies to guys like Andrew Workshop. Nash targets a vulnerable population so that he can exploit the people. He uses what God gave him not to fight for the benefit of people but, to get a win in a weight class below him.

                1. Concentrate, linda.
                  Focus.
                  You come back with the same kind of BS over and over again

                  You made a point in a comment, I made a point in a comment.
                  Insread of pursuing that, you totally avoid the topic and go all over the place like a scatterbrain fool.
                  As others have learned, trying to have a rational exchange with you is a damn joke.

                  And you keep providing examples of just how unfocused and unhinged you are.

                  1. Tom Nash,
                    Your knowledge deficit (which provokes your ire and sense of “rational” superiority) can be reduced by reading the information explained by Myer-Briggs, specifically the “intuitor vs. senser” methods of processing. The research has been compiled over an approx. 50+ year period and, is widely referenced in all circles. About 75% of college graduates are “intuitors”. However, it was found that those in business present an anomaly to the statistic, most of them being more similar to you, as a “senser”.

                    Pres. Trump’s child-like processing would make conclusions about his information processing difficult, if not impossible.

                    1. Linda, You really don’t have to continue making my point for me, but I do appreciate your efforts.

              2. I stand corrected, in fact, I’m sure there are countries that he doesn’t even know exist where he’s missed entire populations. Actually, assuming only a few other inhabited planets, he’s probably only insulted half the universe.

                    1. I’ll rephrase. Why shouldn’t a President insult these people. Barack Obama certainly insulted a whole array of people. To take your list point by point:

                      – Mexica? Never heard of it but as for Mexico, if they knew how to run a country their own people wouldn’t be risking their lives to try and sneak into ours.

                      – Haiti: When did he insult Haiti? He certainly didn’t pretend to help them out with a sham of a foundation now did he? Oh wait, that was the Clintons. It is valid though to wonder why the other country that shares an island with Haiti has experienced little of the hell Haiti has.

                      – Nigeria: Their regime is corrupt. They have internal strife with the Yoruba in one part of the country and with Islamists in the north. Surely Boko Haram doesn’t deserve a kind or respectful word.

                      – France: Bwahahahahahaha!

                      – England: Show evidence.

                      – Australia: Read the entry for England.

                      – Russia: Trump has imposed far tougher sanctions than Doormat in Chief Obama ever dreamed of AND Trump’s talked about backing Ukraine.

                      – Democrats: The Jack Ass Party deserves all available scorn. And let’s be fair, it isn’t like your side is cordial and kind toward the GOP.

                      – Yankees?? Explain this one to me. Is this like the New York Yankees? Is it like the Yanquis on that racist mural in San Diego’s Chicano Park? Do explan.

                      – Californians: Read the entry about Democrats. Unlike you, I actually have lived in California. The state is one of the most gorgeous places on earth. The state is also a plantation style economy with the very rich at one end and everyone else on the bottom end. They’ve brought that on themselves through a succession of stupid policies that have only served to strengthen the status quo. California after all, is the state with a governor that bragged about the high-speed now not-so-high-speed rail project by proclaiming that just like in the 1930s “Californians would once again ride the rails”. They’ve spent a generation or so electing idiots to high office so their chickens are coming home to roost.

                    2. He said Haitians, “All have aids.” I see you have a like mind and would also insult have the planet. You shouldn’t be President either.

                      What’s wrong with insulting crazy people is the likelihood they’ll do something crazy back in response. That applies both ways in the North Korea conversation.

                    3. For almost two years now people like you have been claiming Russian collusion with the Trump campaign. Riddle me this: let’s say Trump and Putin concocted some scheme that put the former in the White House. That means there would be a quid pro quo, right? What was it? What’s Russia getting now that they didn’t or wouldn’t have had otherwise?

                    4. What Russia would have gotten a long time ago was the lifting of the sanctions against it. The administration began making plans to lift them even before taking office. If not for the public spotlight and Congress imposing even more sanctions (which Trump has thus far refused to sign into law). Russia and in particular it’s Oligarchs would be billions of dollars better off.
                      BTW, I almost never use the word “collusion.” I prefer, conspiracy, money laundering, bribes in foreign countries (against US law), upcoming perjury, and pure ineptitude.

          1. Andrew, you are aware the original argument that Michael objects to so strenuously is that Trump insults people regularly. Have you ever seen his Tweets? How can you seriously argue against that, or is it just me you can’t agree with?

            1. If this late in the game you don’t understand the value in his Tweets, then you are on shakier ground than I previously thought. And you are probably jealous that while Trump mastered the Tweet, Hillary instead had a staff spend up to 12 hours composing what were supposed to be rapid-fire, witty Tweets.

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