Below is my column in USA Today on the renewed calls of President Donald Trump to change our libel laws to make it easier for public officials and figures to sue over publications like the recent book by Michael Wolff. While the controversy was quickly pushed from coverage by the President’s alarming statements on immigration policy, it is clear that he remains heavily invested in this ill-considered idea.
President Trump has renewed his call to take “a very, very strong look” at our libel laws to make it easier to sue writers and publishers for any false statements against politicians like himself. Trump took time out of his first 2018 cabinet meeting to denounce “our current libel laws” as “a sham and a disgrace and do not represent American values or American fairness.” Fortunately, there is little that Trump can do to alter our libel laws, which not only represent American values but are directly founded in the First Amendment. What is far more concerning is that this point has not been made clear or fully understood after a year of the president calling for changes in defamation rules. Ironically, his counsel are not only in the best position to explain this reality but one of his lawyers, Michael Cohen, has filed cases that show ample ability to sue over false or misleading statements.
The fact is that it is relatively easy for most people to litigate defamation in the United States. Anyone can sue for false statements under a simple negligence standard in proving the falsity of statements. That is the lowest possible standard in our system. It is only difficult for those people who take public office (like Trump) or become public figures (like Trump before taking office). For those people, the courts balance the importance of free speech against the need to deter false statements.
The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written and Trump is precisely the type of plaintiff that the opinion was meant to deter. The case came out of the highly divisive period of the civil rights movement. The New York Times had run an advertisement referring to abuses of civil rights marchers and the arrest of Martin Luther King Jr. seven times. The Montgomery Public Safety commissioner, L. B. Sullivan, sued for defamation and won under Alabama law. He was awarded $500,000 — a huge judgment for the time. Sullivan’s lawsuit was one of a number of civil actions brought under state laws that targeted Northern media covering the violence against freedom marchers. The judgments represented a viable threat to both media and average citizens in criticizing our politicians.
The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, someone like Trump must show either actual knowledge of its falsity or a reckless disregard of the truth. That standard has been honored for over 50 years and, while many presidents and celebrities have complained about the burden placed on them under the First Amendment, no president has previously called for this important protection to be altered or eliminated. In order to change the standard, Trump would have to either change the make up of the Supreme Court (with a majority of jurists with extreme constitutional views) or amend the First Amendment.
Trump’s renewed call for changing our defamation laws is clearly an outgrowth of the release of Michael Wolff’s book “Fire and Fury: Inside the Trump White House.” The book asserts that Trump’s aides are alarmed by his mental state and have repeatedly raised the possible need for removal under the 25th Amendment. Trump tried to prevent the publication of the book and threatened a defamation lawsuit if it was allowed to reach the bookshelves. The publisher defied the president and actually pushed up the release date. Many denounced the president for seeking an unconstitutional prior restraint. No defamation lawsuit has been filed.
There are errors in Wolff’s book and one can certainly understand the frustration of politicians in being hammered in such one-sided accounts. However, the reduction of the standard for defamation would produce sweeping and dangerous changes to our political system. It would allow powerful figures to more easily sue newspapers and citizens alike for saying bad things about them in public. It would allow politicians to use precisely the cudgel wielded by L.B. Sullivan to try to bring media to heel during civil right movement. Indeed, while some citizens might relish the idea of hammering media over critical Trump coverage, they might be less enamored with the change when the next president silences conservative media and outlets.
More importantly, what the president described as the publication of knowing falsehoods or reckless conduct by reporters is precisely the current standard for defamation. If people say things about him with a reckless disregard of the truth, they can be sued successfully for defamation. Indeed, recently wrestler Hulk Hogansuccessfully sued the Gawker website and won $140 million — forcing Gawker out of business.
The president simply has to ask his lawyer, Michael Cohen, who just filed not one but two defamation lawsuits in both federal and state courts against, the private investigative firm Fusion GPS and the website BuzzFeed (and its editors).
Cohen was mentioned in the famous Trump dossier that was ultimately funded by Hillary Clinton’s campaign and the Democratic National Committee. It was full of false or unverifiable statements. For example, Cohen quotes assertions that “TRUMP’s lawyer, Michael COHEN in covert relationship with Russia. COHEN’s wife is of Russian descent and her father a leading property developer in Moscow.” Cohen asserts that “his father-in-law is not a leading property developer in Moscow; he has only been to Russia once. In fact, Plaintiff’s father-in-law does not even own a vacation home in Sochi, nor has he ever been there. Additionally, Plaintiff’s wife was born in the Ukraine region and immigrated to the United States over forty (40) years ago; she has never been to Russia.” More importantly, Cohen denies that he ever met Russians referenced in the dossier and has never been to Prague, Czech Republic where he supposedly met Russian counterparts. If proven, those would be the type of falsehoods that could have been easily verified and their publications could constitute reckless disregard. Moreover, the author Christopher Steele and GPS allegedly shopped his findings to various media figures during the campaign while being funded by Clinton and the DNC.
Cohen has a valid defamation filing that is likely to go to trial. Thus far, his client does not. Most of the recent threats from the president over a defamation action focus on statements by individuals like Steve Bannon, which would clearly constitute protected opinion, not defamation. If the book does contain false factual statements, the president is free to sue in the same way as Hulk Hogan or his own counsel.
In the end, the problem with Trump’s inability to file a defamation lawsuit is not a lack of “American values” but a lack of a viable legal claim.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University where he teaches both constitutional and tort law. He is also a member of USA TODAY’s board of contributors.