Does POTUS know that regular people can be sued for defamation for the things they say or write, not just media outlets? Someone on Twitter joked a few days ago that if libel laws suddenly became more lax Barack Obama might end up owning Trump Tower. That’s an exaggeration, but it’s undeniable that the biggest loudmouth loose cannon in American culture, a man famous for lobbing rhetorical grenades at his enemies on social media, would be at financial risk if it suddenly became easier to recover for falsehoods that damaged an opponent. Obama might not take over Trump Tower but the building might need to be sold to pay the various awards against the president.
Silver lining: If anything would force him to quit Twitter, that would.
Reporters are wringing their hands over this clip. I’m not, and the fact that I’m not makes me think back to this post last night. Am I “normalizing” Trump by shrugging off an illiberal suggestion like this one? Or am I just responding rationally to the data that suggests he has no intention of actually doing anything about libel laws? If the president is a blowhard who says worrisome things but never musters the political will to act on them, where does that rate on the Concern-o-meter?
President Trump: “We are going to take a strong look at our country’s libel laws … You can’t say things that are false, knowingly false, and be able to smile as money pours into your bank account.” pic.twitter.com/FUK7CTxOQb
— NBC News (@NBCNews) January 10, 2018
He’s been saying stuff like this literally for years. Wolff is an unusually prominent target but Trump has been frustrated by his inability to punish the press for errors they’ve printed about him since his days as a tabloid staple in New York City. Waaaay back in February 2016, the first month of the Republican primaries, he was grumbling to audiences at his rallies that it was time to make the media pay for “purposely negative and horrible and false” stories. He’s been president for almost a year now and has done squat to make it happen. How come? Apart from having a short attention span, I mean.
The answer is that the feds have nothing to do with defamation law and probably couldn’t make anything stick even if they wanted to. Defamation is a tort; torts typically are covered by state law. Congress could, I guess, try to pass a new defamation law creating a federal cause of action for would-be plaintiffs but no Democrat’s going to vote for that with Trump cheerleading it and various Republicans will refuse to vote for it on federalism grounds. (I think. You never know in the new Trumpified GOP.) Even if every Senate Republican bought in, which they wouldn’t, McConnell would be nowhere near the 60 votes he’d need to beat a filibuster. And whatever his other flaws, McConnell has traditionally been good on First Amendment issues. He might refuse to bring a bill to the floor on principle if it attempted to loosen libel laws.
If the feds did somehow pass something, they’d run into a constitutional wall via the Supreme Court’s famous decision in New York Times v. Sullivan. As a matter of longstanding First Amendment jurisprudence, a public figure can’t recover in a defamation suit unless he shows “actual malice,” i.e. that a falsehood was published knowing that it was false or with reckless disregard as to its truth or falsity. To get over that constitutional wall, Republicans would need the Supreme Court to overturn Sullivan. There’s zero evidence that the Court’s conservatives have any interest in doing so. Certainly, given his libertarian bent, there’s a near-zero chance that Anthony Kennedy would support loosening libel laws. He’d vote with the Court’s four liberals to form a majority affirming Sullivan and he probably wouldn’t be the only conservative to do so. Trump likely has no idea about any of that but plenty of trained lawyers within the GOP caucuses in Congress do. Which is why they won’t waste any of their time trying to make his dream a legislative reality.
There’s a “tell” in the clip above, in fact, that Trump isn’t serious about this. He refers twice to improving libel laws by making the media liable for knowing falsehoods. But … that’s the law already. That’s actual malice. Even public figures can recover damages if they can show a falsehood was published knowing it was false. (A non-public figure need only prove that there was negligence in publishing the falsehood.) Libel suits are hard to win because it’s difficult to prove that the author knew a falsehood was false, not because the constitutional standard for liability is somehow wildly out of whack. Which makes me think Ken White is right:
I would add, since 11/16, my growing sense that it’s possible that Trump doesn’t understand what he can or can’t do about libel law and nobody in his circle sees any point in explaining.
— NotParticularlyStableHat (@Popehat) January 10, 2018
Trump made this same mistake in February 2016 when he lamented the media’s supposed immunity in printing “purposely … false” stories. They’re not immune! They’re completely exposed legally if they print something false on purpose, even under the Sullivan standard. Either Trump doesn’t know that and no one around him wants to bother straightening him out, since they don’t take his pronouncements on this topic seriously either, or he does know it and is just tossing this out to his base as red meat expecting that they don’t know it. The libel laws aren’t going to change. This complaint is just a rhetorical arrow in his quiver, a nudge to populists that he intends to use his presidential power to punish their enemies in the “fake news media.” He doesn’t.