Of Lies And Libels: Trump’s Problem Is Not With The Lack Of “American Values” But The Lack Of A Libel Case

donald_trump_president-elect_portrait_croppeddownload-1Below 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.

76 thoughts on “Of Lies And Libels: Trump’s Problem Is Not With The Lack Of “American Values” But The Lack Of A Libel Case

  1. No surprise that Trump wants to shut down opposition voices. It reflects the assault on democracy occurring in every sphere. “Tightly held economic power almost universally translates into tightly held political power”. The top 0.1% quadrupled its income between 1980 and 2010, while the share of national income going to labor is at the lowest point in recorded history. ( “The One Percent Solution” by Gordon Lafer and Alternet).

    During the 2016 election cycle, the Koch’s spent an estimated $400,000,000 divided among 31 states.

  2. “In order to prevail, someone like Trump must show either actual knowledge of its falsity or a reckless disregard of the truth.” That sounds like plenty protection against fake news. If Trump were successful in introducing new law, then his own Tweets would cause him more problems than they already do.

    I actually think the politicized media should be sued when they are guilty of the above. Of course, that would mean interminable, expensive lawsuits spanning years. Something has to be done to combat the blatant falsehoods. They would probably claim that attempts to keep them honest are a war on the media.

    In addition, there need to be more grassroots efforts to fight the mainstream propaganda. It has become so egregious that the media even lied about how Trump fed Japanese Koi. Most people polled do not trust the media. That is so sad that a profession once viewed as reliable and trustworthy is now viewed as completely dishonest. We must fight that bad information with honest, and get it out to millions of people.

    I see a niche for a new media outlet that is completely unbiased, straight news, and a reliable, non political fact checker. The only agenda should be telling the truth. This could be a station or magazine that every person of all political persuasions could enjoy. In it, the women would wear business suits like they did in the 80s. On every channel, every woman except for Rachel Maddow and Barbara Walters are all dressed like they are at a cocktail party or club, in an environment where they also are shocked at feeling sexualized. Even the local weather girl wears a ridiculously tight dress or skirt every day. Whatever happened to the Women’s Lib movement where women wanted to be taken seriously? The one, single positive thing that I can say about Rachel Maddow’s show is that she dresses seriously.

    • I have a better and simpler solution. Any time the media gets it wrong, via social media and subscriber email they should be required to broadcast an apology and explanation not just to their subscribers, but to everyone in the “friends” list of their subscribers.

    • Merely because a news story relays negative facts about a president or a political party you prefer does not render that story to be “Fake News.”

      this is to “Hannity is my truth whisperer” karen

  3. Meanwhile as folks are caught up in the latest Trump drama magnified by the MSM other more important stories remain unreported

    such as the Imran Awan and Friday’s 11-count indictment of former uranium transportation company executive, Mark Lambert –the latest in a series of DOJ prosecutions involving individuals linked to the Russian nuclear industry and the Uranium One deal.

    “FBI Probe Into Russian Uranium Bribes Concealed By Obama DOJ; Mueller, McCabe, Rosenstein Involved”

    https://www.zerohedge.com/news/2018-01-15/fbi-probe-russian-uranium-bribes-concealed-obama-doj-mueller-mccabe-rosenstein

  4. We could leave the standard alone and modify the proof requirements to allow for specific presumptions when certain egregious situations arise. For example, where an author is granted exclusive access to a political figure like Trump, we could presume malicious intent from provable falsehoods. Not opinions mind you, but material misstatements designed to manipulate the public like so-and-so was at a particular meeting with Putin when he was half-way around the world. It could be a rebuttable presumption but it would force fact-checking which seems like a societal good to me.

  5. This is one of the most balanced articles I have found describing today’s political climate.

    Leaders lie, and they do it everywhere except in Utopia. Yet some lies are more dangerous than others. The subtle lie is doubly pernicious: first because it is more likely to be believed by the unskeptical and second because once listeners have become inured to such deceit, they become not just skeptical but cynical. The result is a complete loss of faith in what public figures say. This was the situation when Trump arrived on the scene. But he represents a change: everyone knows what he means whenever he speaks, no matter what he says. His tactlessness might be an overreaction to the jaded political discourse that came before, but there is no question that what came before was corrosive to the republic in ways that elicited none of the conscious resistance with which Trump’s bombast has been met.
    http://www.libertylawsite.org/liberty-forum/trump-the-great-de-mythologizer/

  6. As long as we have consumers of stories unable and/or unwilling to differentiate fact from fiction, then we’ll have authors willing to publish anything. The sheer volume of published stories can be overwhelming. Combine that with an audience lacking objectivity and critical-thinking skills, and we get fed whatever will nourish our biases.

  7. Perhaps a better solution would be a class action lawsuit against Wolff and his publisher. After all, Wolff admits in the prologue of his own book that it is complete fiction. Then he’s made rounds on all the shows where his every statement is treated as an edict delivered from on high. Perhaps the only real scrutiny he faced was on The View – yes, The View – where McCain hit him hard before an audience not used to dissent. (The jaw drop feeling in their souls was palpable). Of course, Goldberg and Behar – ideological daughters of Hitler and Stalin -rescued Wolff so he could peddle fiction as fact before the assembled fools.

  8. If President Obama had threatened to stop a book from being published, conservatives would have had actual kittens shooting out of their urethras.

    Yet Trump (who, barf, is one-third of our government when he’s not golfing, with is about one-third of the time) does it and he’s a fighter?

    It’s like the Democrats threatening a government shutdown: when all they did the last eight years was whine about the tactic.

    More lovely bipartisan consistency.

  9. In reference to Michael Cohen’s defamation lawsuits, Turley said, “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.”

    It is known that Buzzfeed published the entire dossier online. It is not known how Buzzfeed got its hands on the dossier. If Michael Cohen can prove that Fusion GPS gave the dossier to Buzzfeed, then Fusion GPS would be just as culpable as Buzzfeed for whatever provably false claims from the dossier Buzzfeed published. Otherwise, Cohen might succeed at making his case against Buzzfeed, while failing to make his case against Fusion GPS. So how did Buzzfeed acquire the dossier, anyway?

      • And here’s a curious excerpt from the article linked above:

        “The Trump administration’s transition team did not immediately respond to BuzzFeed News’ request for comment. However, the president-elect’s attorney, Michael Cohen, told Mic that the allegations were absolutely false.

        ‘It’s so ridiculous on so many levels,” he said. “Clearly, the person who created this did so from their imagination or did so hoping that the liberal media would run with this fake story for whatever rationale they might have.'”

        So, on January 10th, 2017, Buzzfeed quoted Cohen as saying that the allegations were absolutely false, “ridiculous on so many levels,” and a “fake story.” Now Cohen is suing Buzzfeed for defamation?

        • And here’s a synopsis of the article published by Buzzfeed directly under the title of Buzzfeed’s article:

          “A dossier, compiled by a person who has claimed to be a former British intelligence official, alleges Russia has compromising information on Trump. The allegations are unverified, and the report contains errors.”

          So does Buzzfeed’s disclaimer exculpate Buzzfeed from Cohen’s defamation suit against Buzzfeed? BTW, there are a great many of such disclaimers in Buzzfeed’s article. Just click on the link above and read it with your own eyes. It does not read like defamation to me.

    • And here’s the first two paragraphs from Buzzfeed’s January 10th, 2017 article:

      “A dossier making explosive — but unverified — allegations that the Russian government has been “cultivating, supporting and assisting” President-elect Donald Trump for years and gained compromising information about him has been circulating among elected officials, intelligence agents, and journalists for weeks.

      The dossier, which is a collection of memos written over a period of months, includes specific, unverified, and potentially unverifiable allegations of contact between Trump aides and Russian operatives, and graphic claims of sexual acts documented by the Russians. BuzzFeed News reporters in the US and Europe have been investigating various alleged facts in the dossier but have not verified or falsified them.”

      Is it even possible in the first place to defame someone in the act of clearly stating that the allegations against that person or persons are “unverified” and contain “alleged facts” some of which are “potentially unverifiable?” Exactly what sort of changes to our libel laws does Trump seek? New organizations like Buzzfeed have to meet the same burden of proof as prosecutors are required to meet in a court of law before the press can publish even so little as the statement that allegations have been made against someone??? Try putting that shoe on the other foot and see how it fits.

      • And not to put too fine a point on it, but, supposing that some news outlet had reported that Congressional Republicans have alleged that the FBI used a dodgy dossier to obtain a FISA warrant on Carter Page, could that news outlet then be sued for defamation of, say, former FBI director James B. Comey, for instance, because that news outlet had not met the burden of proof required for prosecutors in a court of law before that news outlet had published the mere statement that allegations have been made against the FBI???

        And that’s just one example of putting Trump’s jackboot on the other foot. Think of all of the other examples that could be given. There’s no shortage of counter-examples; you know!

        • Just in case anyone is wondering about the significance of the date January 10th, 2017, here’s what Wikipedia has to say about it:

          “The contents of the dossier were published in full by BuzzFeed on January 10, 2017. BuzzFeed’s decision to publish the dossier was met with criticism from some mainstream media outlets.

          Parts of the dossier have been confirmed, while others have yet to be proved or disproved, including, as 2017 drew to a close, the dossier’s allegations of collusion. The media, intelligence community, as well as most experts have therefore treated the dossier with caution, though Trump himself denounced the report, calling it “fake news”. In February 2017, it was reported that some details related to conversations between foreign nationals had been independently corroborated, giving U.S. intelligence and law enforcement greater confidence in aspects of the dossier as investigations continued.”

  10. What the Europeans are saying is that Trump is an example of Democracy in Action, and that America is a bad example. Many Europeans argue for Royal families to run the roost and to stop having elections at all.
    They say that Prince Harry would be better than The Donald and that he (Prince Harry) is not a bigot.

    I think that we need to have an Electoral College in the midwest which can choose our President. Nothing political should be located near either the East Coast or West Coast. Our capital could be St. Louis or Kansas City, MO. Maybe even Jefferson City, MO. In the middle, not the muddle.

  11. It is time that we question and investigate Trump’s birth certificate and also search his ancestry. I think that he is part Roma or what we call Gypsie. He has been known to gyp and he has spent time in his home country of Romania. We should inquire of Gypsie Rose Lee’s family of any ties.
    Trump bump bo bump, bannana fanna fo fump, fee fi moe mump. Trump!

    Moe, Larry, Cheese!

    I think Trump is related to the Three Stooges.

    • You got two words wrong. Members of The Collective are not allowed to think. So.. we’re left with a two cent a post Programmer and The Collective …. machine parts in need of repair.

      Ad Machina

        • There is a writing technique referred to as, “fictionalizing your true story.” Dreams from My Father uses it brilliantly. And of course you need the legal paperwork to support the story you’re selling, so you do what you gotta do.

          What motivated him was his suspicion that everything wasn’t on the up and up with Obama. Because it isn’t. There are still many questions about his past that remain unvetted and unverified.

          Your question is exactly why the MSM sat back for eight years under Obama. If anyone questioned Barack Obama, criticized him or called him out, or held him to account, then my God, they were probably a racist. So shhh, he’s half black ya know, so back off or get called racist.

          Obama is a fraud, that’s what motivated him.

          • What’s hard to believe about President Obama’s mother being a student at the Univ of Hawaii and spending time with an extremely bright foreign student from Kenya? That’s a completely normal believable personal history.

            • Agreed. Not hard to believe, in fact many parts of Obama’s ‘story’ are true and believable, but there are many gaps and questions that have never been answered or explained. The media, to this day, have little interest in seeking answers to the many questions that remain about Obama’s background. He was never vetted by the press.

              For example, here’s one short clip from 1995 where Obama gives a talk about his book, Dreams from My Father. In this clip he mentions being mentored as a young boy in Hawaii by Frank Marshall Davis, a friend of his Gramps.

              This is the “Frank” mentioned some twenty-two times – by first name only – in the print version of Obama’s book Dreams from My Father – a book that many say was actually written by Bill Ayers. (look up who he is)

              Then later on, the name “Frank” is purged entirely from the audio version of the book, narrated by Obama himself, for which he won a ‘Best Spoken Word’ Grammy award. Not one mention of the mysterious “Frank” in the audio book. Why would that be? Because Frank Marshal Davis was a Communist pornographer and poet with a sketchy background, and likely Obama’s biological father. Things like this raise questions about Obama’s life story and how much of it is a carefully crafted ‘narrative’ put together to help him get elected.

              And to this day, all of his records remain sealed.

            • When did Obama legally change his name from Barry Soetero to Barack Hussein Obama? There are no legal name change records available to the public, but they may be under seal along with everything else.

              So many questions about his very odd background. Obama’s mother, Stanley Ann Dunham, was quite a character as well.

      • So that is how the bigots of the national socialist left are going to deal witih Arpaio. Looks like that hook sunk deep and caught another fish.

    • President Trump should unseal all of Barack Obama’s sealed documents and then Obama should apologize for defrauding the American people.

  12. If the media is an arm of a political party are they above being sued for defamation? Should the standard even exist for them?

    • How would you prove in a court of law that the media are an arm of a political party? Which media? Which political party? Have you misplaced your winky face?

    • You may have uncovered a vast, communist-socialist-leftist conspiracy of ne’er-do-wells, hell-bent on eradicating our way of life; or, flouridating our precious bodily fluids. Please elaborate on the extent of this nefarious network you have so cleverly discovered.

      this is to “Inspector Clouseau” paulie-georgie

    • Defacing maybe but surprisingly defaceation has it’s own definition

      B H M S Solved Papers on Anatomy: Including Dissection & Viva Voce
      https://books.google
      S. K. Banerjea – 2003 – ‎Medical
      (iv) Internal oblique together with the external oblique and transversus abdominis act antagonistically with the diaphragm in respiration. But when they act together with the diaphragm, the intraabdominal pressure is increased to help in defaceation, micturation and parturition. Q. 9. Describe the origin, insertion, nerve supply …

  13. Insofar as the the so called media is concerned do they really hold valid status under the First Amendment? “abridging freedom of…. the press.” to pull out the applicable verbiage. When the media is used as a propaganda vehicle, or as a one sided form of advertising.. or using unsupported, unamed sources is that truly the meaning of abridging the freedom of the press? Does it mean they are free to slander or fabricate? No need to take sides just a simple yes or no.

    • Are you sure you read the whole first amendment? For a guy who talks a lot about defending the Constitution, you’re sure quick to toss a pretty important part of it aside when it doesn’t suit you.

      • If you’re alluding to the right to petition one’s government for a redress of grievance, then it seems that Turley covered that issue in his commentary about Michael Cohen’s defamation suits.

      • What part is that? And what was your answer Yes or No. Fairly simple but when dealing with …. etc. Whee was it tossed aside? The question was ‘does that specific to the media’ verbiage apply to propagandists. As a group they never suit me as the violate the entire Constitution. Here is an excellent example that begain with Lincoln the second imperial president instituting military wholesale military conscription

        “Black Soldiers At the beginning of the war, white Northerners were vehemently opposed to fighting alongside black troops. As the war progressed, though, and white enlistments dropped off, rules against black enlistments were eased. Many blacks then joined of their own free will. Others were rounded up from captured rebel plantations and sent from bad to worse, from southern agricultural slavery tonorthern military slavery.
        Ledbetter, Mark David. America’s Forgotten History, Part 2: Rupture (p. 406). Mark David Ledbetter. Kindle Edition.
        and other similar historical research volumes.

        So now you are saying that you suipport unsupported propaganda or just the parts that suit you?

  14. I appreciate this topic and it is informative.

    But I sure would like to see Prof. Turley’s comments about the projection of profanity and anti-Trump speech onto the front of his DC hotel from a projector across the street. Surely, showing damages would be not-to-difficult. The previous case’s decision seems awfully squishy to me, one who understands enough about the law to be a true danger to society.

    Or the comments of others based on something other than sheer partisanship.

      • Now that does tie in with defaceation..

        B H M S Solved Papers on Anatomy: Including Dissection & Viva Voce
        S. K. Banerjea – 2003 – ‎Medical
        (iv) Internal oblique together with the external oblique and transversus abdominis act antagonistically with the diaphragm in respiration. But when they act together with the diaphragm, the intraabdominal pressure is increased to help in defaceation, micturation and parturition. Q. 9. Describe the origin, insertion, nerve supply …

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