Donald Trump’s been bloviating about changing U.S. defamation laws since well before his questionable ascension to office.
"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.
Trump’s first problem is the First Amendment. It’s been
more than 50 years since the Supreme Court held that, when it comes to public officials, libel requires actual malice.
[The First Amendment] require[s], we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
The same standard that applies to officials also covers public figures. Trump, of course, has been a public figure for ages.
When it comes to the press, actual malice is difficult to prove, and purposefully so. That’s why Trump failed in prior efforts to sue for libel. In one memorable instance, he apparently couldn’t even prove that the purportedly libelous statement—calling him a mere “millionaire” rather than “billionaire”—was untrue, much less show the author’s knowing falsity or reckless disregard for the truth.
Trump’s second problem: He doesn’t understand libel laws. Libel laws are made at the state level, though sometimes applied by federal courts. For that reason, there’s no real role for the executive branch to play with respect to libel law.
The third issue, of course, is that Trump’s the one who’d be in the biggest trouble if he succeeded in revising defamation laws broadly. He’s almost certainly committed both slander, via speech or rally, and libel already. He generates libelous material as a matter of course on Twitter. A stricter libel law would backfire on him. Courts have found Trump’s tweets evidence “animus.” Knowing falsity and reckless disregard for truth are lower standards. It need only be the case that Trump should have known that what he said or wrote was not true.
Trump’s antipathy toward truth isn’t even debatable anymore.
Trump enjoys absolute immunity for actions that fall even within the outer limits of his official responsibilities. But there’s a strong argument that many of his more outrageous tweets are unrelated to any official duty, especially with respect to tweets bullying private individuals. Note that when speech involves a private citizen and a private matter, malice isn’t required. He’s already been sued over a defamatory tweet at least once, albeit unsuccessfully. A more permissive libel law would increase the odds of successful suits against him.
It’s not his penchant for name-calling but rather his fondness for “alternative facts” that’s most problematic, libel-wise. And, if anything, Trump’s growing more fond of distorting the truth. On Sept. 7 alone, Trump “publicly made 125 false or misleading statements” during just two hours. It was a personal best. Trump passed the 5,000 mark on his 601st day in office, per the Washington Post. He’s actually lying more now than he did during his first 100 days in office. Not all—not even most—of these untruths would expose Trump to liability, but plenty would, considering how often he makes negative, purportedly factual comments about individuals and organizations.