Presidential candidate Donald Trump has a widely known, albeit incoherent, stance on libel. Like many of Trump’s policy positions, his views on libel appear to be founded upon an angry shard of truth (newspapers should not allow bias or corporate concerns to pervert their reporting). But as with many of his policy positions, Trump’s views on libel fail to grasp the complexity of the problem, and expose his views as self-serving and hypocritical. Indeed, instead of making American great again, Trump’s views on libel threaten to undermine one of the things that makes America the greatest—our uniquely strong free speech protections.
The irony of Trump’s position on libel is that his candidacy has likely benefitted most from media coverage. The press happily covers the provocative, sensationalist comments Trump utters, giving him free advertising. Trump has also brazenly told more untruths than perhaps any other candidate, even on topics as sensitive as 9/11. Yet Trump is hypersensitive to criticism. For Trump, libel suits are nothing more than the blunt instrument he’s chosen to silence media criticism, similar to the childish name-calling he uses to silence opponents.
Under current law, public figures can sue newspapers for defamation only if a news item is false, damaging, and published with “actual malice.” Malice means that the newspaper has to have known, or have been reckless about, whether a fact is untrue. Newspapers are not liable for accidental or innocent mistakes, and thus the media is much harder to sue in this country than any other. The Supreme Court’s theory behind this standard for defamation is rooted in First Amendment values: The demanding standard for liability recognizes that public figures can use their fame and influence to engage in counterspeech, and allows the media to perform its function of informing the public of newsworthy developments without constant fear of reprisal or liability.
Of course the media should engage in fair, honest reporting. However, a remedy that allows a lawsuit to proceed every time the media makes a mistake, which compounds the threat of nuisance lawsuits when the media is actually right, will chill more speech than a demanding libel standard will facilitate truth.
Trump’s views on libel are both nonsensical and self-serving. He would like to “open up” libel laws so that he can more easily sue newspapers who report misinformation. (At least I think that’s what he wants to do – when asked how libel laws should change, he claimed nonsensically that we should relax the malice standard (libel’s intent requirement), but pointed to newspapers’ “intent ” to deceive.) Trump has also championed the $140 million judgment Hulk Hogan won against Gawker Media – although Hogan won based on invasion of privacy, not libel, and many believe this verdict will be reversed on First Amendment grounds. Trump also has a history of threatening lawsuits against the media – most recently his lawyer threatened to sue the New York Times for a story about Trump’s treatment of women.
To save himself the heartache of media ire, what Trump really wants is to make America Europe again. European countries do not possess our same constitutional freedoms, and libel lawsuits in Europe are accordingly much easier to win. Europe’s more plaintiff-friendly libel (and invasion of privacy) laws protect celebrities’ interest in being left alone. In countries like France and Germany, the strong libel laws likely stem from Europe’s history of hierarchy between the aristocracy and the general public; libel laws in Europe shield the “dignity” of royalty and other celebrities. America’s libel laws, by contrast, protect the public’s right to receive and disseminate information as against governmentally imposed liability. In Trump’s crusade to strengthen libel laws, Trump has revealed himself to be what he rails against- an elitist aristocrat who wants public scrutiny only when it serves his interests. Trump is the establishment; he has the power of the aristocrat, and he now wants to undermine those who threaten that power.
Just like Peter Thiel, the Trump supporter who allegedly funded Hulk Hogan’s lawsuit against Gawker, perhaps because Gawker outed Thiel’s sexuality, Trump uses lawsuits as a weapon to silence critics.
Yet Trump himself benefits greatly from America’s strong free speech protections, given that much of what he says is not completely true. Earlier this month, David Farenthold of the Washington Post exposed Trump’s lies about his charitable contributions to veterans—Trump donated only half of the money he claimed to raise for veterans’ charities. Since the Post’s coverage on this issue, Trump has donated the rest of the money he raised, but he was angry at the media for their constant questioning of where the money went. This anger likely led him to accuse the Washington Post’s owner Amazon of antitrust violations.
Trump’s quest to “open up” libel laws is intended to provide him “freedom” from scrutiny, which is not a freedom our constitution guarantees nor a right our laws can constitutionally allow.