One of Donald Trump's biggest attacks on civil liberties comes from his regular threats to sue reporters for libel if he doesn't like what they write. Trump has repeatedly promised to use his power as president to suppress the freedom of the press, saying, "We're going to open up those libel laws...." On March 30, Trump reiterated his promise in a tweet attacking the "failing" New York Times that ended with, "Change libel laws?"
Unfortunately, the mainstream media have tended to dismiss Trump's threats as empty rhetoric. Politico reported the view of an ACLU attorney that "there are virtually no steps within the president's power to 'open up libel laws' as Trump has suggested." But in reality, the president has enormous power to change libel laws by appointing Supreme Court judges who can alter constitutional protections.
Callum Borchers of The Washington Post wrote, "Trump's latest suggestion that he might 'change libel laws' might sound good to his supporters, but it's clear from his Supreme Court pick that it is just talk." This view, however, seems overly rosy.
Gorsuch on Libel
Trump's Supreme Court appointee, Neil Gorsuch, has not shown himself to be a strong defender of freedom of the press against libel law. During his Senate hearing, Sen. Amy Klobuchar (D-Minnesota) asked Gorsuch whether he believes "that the First Amendment would permit public officials to sue the media under any standard less demanding than actual malice." Gorsuch responded, "That's been the law of the land for, gosh, 50, 60 years. I could point you to a case in which I've applied it and I think might give you what you're looking for, Senator, in terms of comfort about how I apply it: Bustos v. A&E Network."
However, Gorsuch's ruling in Bustos v. A&E never mentioned the "actual malice" standard because it didn't involve a public figure. Discussing the age of a precedent in a deceptive answer doesn't mean Gorsuch will support all of it. The ruling in New York Times v. Sullivan established requirements for defamation that the information was false, damaged a reputation, and, for public figures, that it was published with "actual malice" -- "with knowledge that it was false or with reckless disregard of whether it was false or not." Gorsuch may not overturn the entire Sullivan precedent, but he could seek to narrow its application to public figures, such as Trump.
In Bustos v. A&E, Gorsuch bent over backward to protect the media, not because he believed in freedom of the press, but instead because he openly disparaged the person who brought the lawsuit claiming that the network had falsely called him a member of the Aryan Brotherhood gang, when in reality, he was a drug dealer who merely conspired with the Aryan Brotherhood in a criminal enterprise.
The fact that Gorsuch ruled against a dubious libel suit from a prisoner does not prove he's a paragon of the First Amendment who will stand up against the interests of powerful politicians like Trump.
In Bustos v. A&E, Gorsuch also espoused an unprecedented "good plaintiff" rule for libel law: "In American law, defamation is not about compensating for damage done to a false reputation by the publication of hidden facts. It's about protecting a good reputation honestly earned."
Gorsuch's belief that the law only protects "good" people reflects the strong prejudices that he generally holds. And it could lead Gorsuch to weaken the Sullivan "public figure" standard with this new "good figure" standard.
One analysis of judges predicts that Gorsuch will be slightly more conservative than Scalia. The Never-Trump National Review praised Gorsuch as "remarkably similar" to Scalia and called him "like Scalia, a textualist and an originalist." Libel law is especially vulnerable to textualists and originalists. There is no evidence that the framers of the Constitution wanted to limit libel law, and the details of the Sullivan ruling were invented by the Supreme Court, rather than being based on the text of a law. In Bustos v. A&E, Gorsuch was very deferential to Colorado's libel laws, which set a high standard. But if Gorsuch defers to state law in conservative states with low standards for libel, it would be a disaster for press freedom.
The plagiarism scandal surrounding Gorsuch shows that he's not much of an original thinker, preferring to cobble together other people's work. Gorsuch praised Scalia as a "lion of the law" and was chosen by Trump explicitly as a follower of Scalia's ideas. And Scalia was the leading jurist in the country to criticize constitutional protections for the press against libel lawsuits.
In 2011, Scalia told the Aspen Institute 2011 Washington Ideas Forum that traditional libel law protected people against false statements, but "New York Times v. Sullivan just cast that aside because the Court thought in modern society, it'd be a good idea if the press could say a lot of stuff about public figures without having to worry."
In 2012, Scalia told Charlie Rose, "One of the evolutionary provisions that I abhor is New York Times v. Sullivan" because "that's not what the people understood when they ratified the First Amendment." According to Scalia, "Nobody thought that libel, even libel of public figures, was permitted, was sanctioned by the First Amendment."
The protections for the press against libel suits in the US seem like a formidable foundation, but they are actually quite imperiled. If the Supreme Court backtracks at all on libel law, then state laws on defamation will prevail, and plaintiffs like Trump, who hate the media, can go venue shopping, finding the most conservative state with the most lenient laws and judges. Gorsuch may be only the first of Trump's judicial appointees who will undermine these protections for freedom of the press.
The most important threat to freedom of the press comes from libel lawsuits, not legal victories, and Trump has perfected the technique of using libel suits as a tool of repression without ever winning one of them.
How Trump Uses Libel
Trump has used the threat of libel suits to intimidate reporters for most of his life. Early in his career, Trump bragged to reporter Wayne Barrett in 1978, "I've broken one writer. You and I've been friends and all, but if your story damages my reputation, I'll sue." In 1984, Trump sued the Chicago Tribune and its architecture critic Paul Gapp for $500 million after Gapp called Trump's plan to build the world's tallest building in Manhattan "one of the silliest things anyone could inflict on New York or any other city."
Trump's reputation for suing anybody who criticizes him has a powerful intimidating effect. When a casino industry analyst publicly stated how unlikely it was for the Taj Mahal to be profitable, Trump threatened "a major lawsuit" and got the analyst fired. Though the analyst was completely right, Trump has the money to pay lawyers for suits designed to silence any critics. It took more than two decades for the critical documentary "Trump: What's the Deal?" to be released because Trump's threat of lawsuits scared away broadcasters.
To Trump, libel lawsuits are simply a tool for negotiating better media coverage. When ABC planned a TV movie about the Trump family, Trump announced he would "definitely" sue before he ever saw it. However, he added, "But as long as it's accurate, I won't be suing them."
Defamation suits are also one of Trump's favorite mechanisms for revenge, since they are the only way he can sue people who haven't signed a contract with him. Trump sued reporter Timothy O'Brien for $5 billion because his 2009 book TrumpNation cited three unnamed sources who estimated Trump's net worth at only $150 million to $250 million. Trump openly explained his approach to libel in one of his books: "I don't need the money from winning the case -- I need to set the record straight and maybe make it harder for other disreputable writers to knock people for the fun or profit of it."
In 2006, Trump threatened to sue Rosie O'Donnell after she said he was bankrupt. Trump also threatened to sue MSNBC's Lawrence O'Donnell for suggesting he was worth less than $1 billion. Trump threatened to sue USA Today in 2012 because Al Neuharth wrote a column calling Trump a "clown."
Even parodies of Trump can spark legal threats. In 2013, the satirical newspaper The Onion printed a fake opinion piece authored by "Donald Trump" titled, "When You're Feeling Low, Just Remember I'll Be Dead in About 15 or 20 Years." A Trump attorney wrote, "This commentary goes way beyond defamation and if it is not removed I will take all actions to ensure that your actions will not go without consequences. Guide yourself accordingly."
After the Daily Beast published a July 2015 piece accurately reporting that "Ivana Trump once accused the real-estate tycoon of 'rape,' although she later clarified: not in the 'criminal sense,'" Trump lawyer Michael Cohen threatened to sue: "I will take you for every penny you still don't have.... I'm warning you, tread very fucking lightly, because what I'm going to do to you is going to be fucking disgusting.... You write a story that has Mr. Trump's name in it, with the word 'rape,' and I'm going to mess your life up." When the Daily Beast was doing a story about one of his company's bankruptcies, Trump himself threatened them: "If you write this one, I'm suing you." Trump also indicated that he wanted to sue Rolling Stone and The Huffington Post to "put them out of business."
For the Trump family, libel suits have proven to be lucrative and effective. In April 2017, Melania Trump settled a libel suit with the Daily Mail, receiving a retraction and millions of dollars in a settlement after the newspaper claimed that she worked as an escort.
Evan Mascagni, policy director at the Public Participation Project, noted: "Donald Trump has repeatedly attempted to silence his critics over the years through frivolous lawsuits." The status quo of libel law is already a threat to freedom of press, giving rich celebrities the opportunity to punish the press even if few libel verdicts are ever upheld. Trump has mastered the technique of using the threat of libel lawsuits to silence his critics, despite never winning one.
Gorsuch (and the other conservatives who will form a majority on the Supreme Court) may not go as far as Scalia who wanted to overturn Sullivan and open up libel laws. But one Supreme Court decision casting doubt on wide parameters of "actual malice" for public figures could have a devastating effect on freedom of the press in practice. If the Sullivan precedent can be weakened, it would only take one conservative state to pass restrictive libel laws and become a center for "libel tourism."
It won't take a revolution in libel law to create a chilling effect. It will only take a little more legal uncertainty to make timid media corporations even more nervous about critical coverage and investigative reporting. There is no public policy issue where Trump has shown a more consistent and committed position than his desire to suppress freedom of the press by weakening libel law.