Submitted by Mike Krieger via Liberty Blitzkrieg blog,
Ken White over at law blog Popehat has written a very useful article on whether or not Trump is likely to be the existential threat to free speech that so many are concerned about.
Fortunately, he argues that free speech is pretty well protected at the judicial level, adding that most contemporary attempts to whittle away at First Amendment rights actually emanate from “liberal” judges targeting hate speech, as opposed to conservative ones.
Here’s the article: Lawsplainer: About Trump “Opening Up” Libel Laws.
Donald Trump famously said he’d like to “open up” libel laws. How much should that concern you?
From my perspective — as a First Amendment advocate and an opponent of Trump — it should concern you as an attitude about speech, but not much as a policy agenda.
Let’s start with what he said.
“One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected,” Trump said.
I begin with the proposition that Trump is a bullshitter. The polite way to put that is that he says things that are not intended to be taken as factual statements. Was this one? Was it merely emotive? Did he think he could do this sort of thing? It’s anybody’s guess. My guess it that it was mostly bullshit — worrying in terms of his attitude towards free expression, but not a policy agenda.
Let’s talk about the substance, such as it is.
Trump complains about the press being able to run “hit pieces” and purposely “negative and horrible and false” articles. Part of that is true and part is false. The press can absolutely run hit pieces and negative and horrible articles. We don’t have sedition laws any more, and it’s not illegal to be biased or “unfair” in a philosophical sense. Only false statements of fact can be defamatory. Arguments, characterizations, insults, and aspersions can’t be, unless they are premised on explicit or implied false statements of fact.
When a public figure like Trump sues for defamation, they must prove that the defendant made a false statement with actual malice — that is, they must show that the statement was false and that the defendant either knew it was false or recklessly disregarded whether or not it was false. “Reckless disregard” means something like deliberately ignoring manifest signs that the statement was false. That’s been the standard since New York Times v. Sullivan in 1964. Note that even under this standard, a media outlet that wrote a “purposely . . . false” statement of fact can be held liable. It’s a difficult standard, but it can be done, as Rolling Stone found out this month.
So. There are two impediments to Trump and his sympathizers being able to sue whomever they want for “hit pieces” or “negative” and “horrible” statements. First, there’s the requirement that defamation involve a statement of fact, not an opinion or insult. Second, there’s the actual malice standard that applies to defamation claims against public figures.
Trump doesn’t have a clear way to “open up” either one.
Defamation is a creature of state law, not federal law. When you sue someone for defamation, you do so under a statute or the common law of one of the states, not under federal law. You might sue in federal court if that court has jurisdiction (a tedious discussion I’ll spare you today), but that doesn’t make defamation law federal — you’d still be suing under state law. Federal law touches defamation law only to this extent: since 1964 both state and federal courts have applied First Amendment standards to defamation claims, and First Amendment law is often developed by federal courts. In addition, a few overarching federal laws limit state defamation law (for instance, Section 230 of the Communications Decency Act, which says that a service provider isn’t liable for defamation based on what a user posts, and the SPEECH Act, which prevents enforcement of foreign libel judgments in U.S. courts unless those judgments comply with First Amendment standards).
As President, Trump will appoint federal judges, from the Supreme Court to the various Courts of Appeal to the trial judges on the many District Courts. But that’s not a clear or easy path to “opening up” defamation law and changing either the actual malice standard or the requirement that defamation involve false statements of fact. The Supreme Court has supported the First Amendment very strongly in the last generation, particularly in comparison with other rights. The Court has repeatedly rejected recent attempts to create new exceptions to the First Amendment or to narrow it. Consider Snyder v. Phelps, in which the Supreme Court ruled 8-1 that Westboro Baptist Church protests at funerals were protected speech. That represented a firm refutation of the notion that speech could be limited because it is hurtful or offensive. Or consider the somewhat obscure but incredibly important United States v. Stevens, in which the Court — ruling 8-1 again — overturned a federal law against “crush videos” (don’t ask) and sternly rebuked the government’s position that courts can create new ad hoc exceptions to the First Amendment based on a weighing of the value of speech. Or consider Reed v. Town of Gilbert last year, in which the Court unanimously (though with some justices taking a different route) held the line on the idea that laws that restrict speech based on content are subject to strict scrutiny.
Unlike, say, Roe v. Wade, nobody’s been trying to chip away at Sullivan for 52 years. It’s not a matter of controversy or pushback or questioning in judicial decisions. Though it’s been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above.1 You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find ones who would reliably overturn Sullivan and its progeny. It’s an outlying view — not chemtrial-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial — at least not from conservatives. There’s been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there’s no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of “hate speech” and other “hurtful” words. It seems unlikely that Trump would appoint any of these.
Indeed, fake liberals wanting to restrict free speech is a trend I’ve focused on for many years.
See:
Obama Enters the Media Wars – Why His Recent Attack on Free Speech is So Dangerous and Radical
Executive Director of the Kansas City Library System Issues Dire Free Speech Warning
Glenn Greenwald Confronts American “Liberals” Trying to Destroy Free Speech
Speechless – UCLA Engages in Absurd, Anti-Intellectual and Dangerous Attack on Campus Free Speech
Here We Go…Slate Magazine Bashes the First Amendment
In short, there’s no big eager group of “overturn Sullivan” judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.
So: whether or not Trump really wants to “open up” defamation law, it’s unlikely he can.
The statement remains concerning, though, because it displays a contempt towards First Amendment values and freedom of the press. It carelessly conflates false statements and negative coverage. It encourages the public to scorn First Amendment rights, and the public already does that enough already. It also likely encourages defamation litigation, which by its nature silences speech through the expense and stress of litigation even when the defendant prevails. For those, I condemn Trump.
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