Donald Trump has a problem with libel laws. Last month at a rally in Texas, he said he would “open up” libel laws to make it easier to sue news organizations for “purposely negative and horrible and false articles.”
In a meeting with The Washington Post editorial board Monday, Trump repeated his desire to “loosen up” libel laws, but declined to say exactly how he would do so, or what he thinks the standard for libel should be.
It was understandable that the Post’s editors would want to know exactly what Trump has in mind, since he mentioned their paper at the rally in Texas, adding, “we’re going to have people sue you like you’ve never got sued before.”
When pressed, Trump appeared to favor a standard that would allow him to sue news organizations for printing things that are “wrong” or “bad.” Fred Hiatt, the Post’s editorial page editor, asked specifically how he would change the law given the Supreme Court’s 1964 ruling in Sullivan v. New York, which established the current standards for libel. What follows is the exchange they had:
TRUMP: I would just loosen them up.
RUTH MARCUS: What does that mean?
TRUMP: I’d have to get my lawyers in to tell you, but I would loosen them up. I would loosen them up. If The Washington Post writes badly about me – and they do, they don’t write good – I mean, I don’t think I get – I read some of the stories coming up here, and I said to my staff, I said, “Why are we even wasting our time? The hatred is so enormous.” I don’t know why. I mean, I do a good job. I have thousands of employees. I work hard.
I’m not looking for bad for our country. I’m a very rational person, I’m a very sane person. I’m not looking for bad. But I read articles by you, and others. And, you know, we’ve never – we don’t know each other, and the level of hatred is so incredible, I actually said, “Why am I – why am I doing this? Why am I even here?” And I don’t expect anything to happen–
RYAN: Would that be the standard then? If there is an article that you feel has hatred, or is bad, would that be the basis for libel?
TRUMP: No, if it’s wrong. If it’s wrong.
RYAN: Wrong whether there’s malice or not?
TRUMP: I mean, The Washington Post never calls me. I never had a call, “Why – why did you do this?” or “Why did you do that?” It’s just, you know, like I’m this horrible human being. And I’m not. You know, the one thing we have in common I think we all love the country. Now, maybe we come at it from different sides, but nobody ever calls me. I mean, Bob Costa calls about a political story – he called because we’re meeting senators in a little while and congressmen, supporters – but nobody ever calls.
RYAN: The reason I keep asking this is because you’ve said three times you’ve said “we are going to open up the libel laws” and when we ask you what you mean you say hatred, or bad–
TRUMP: I want to make it more fair from the side where I am, because things are said that are libelous, things are said about me that are so egregious and so wrong, and right now according to the libel laws I can do almost nothing about it because I’m a well-known person you know, etc., etc.
Trump’s comments should alarm all Americans who care about freedom of speech and freedom of the press. Libel laws, after all, have a history in this country, and it would behoove Trump and his advisers to get acquainted with it.
In 1964, the Supreme Court ruled in New York Times Co. v. Sullivan that the standard for libel must be actual malice, which means the plaintiff in a libel suit must prove the publisher of a statement knew the statement was false or acted in reckless disregard for its truth or falsity, but published it anyway.
The reason this standard exists is that during the Civil Rights era in the south, newspapers were often sued for libel by state officials for reporting on the mistreatment of civil right protesters. In Alabama in 1964, Montgomery Public Safety Commissioner L. B. Sullivan sued The New York Times for running a full-page advertisement that claimed the arrest of Martin Luther King, Jr., was designed to harm King’s efforts to integrate public facilities and encourage black people to vote. Sullivan said the ad, which made allegations against the Montgomery police, defamed him personally.
Under Alabama law, Sullivan didn’t have to prove he’d suffered any harm. And because the ad contained a few minor factual errors—King had been arrested four times, not seven, as the ad claimed—the defense couldn’t claim it was “truthful.” Sullivan was awarded $500,000 by an Alabama court.
When the case went before the Supreme Court, the justices ruled—unanimously—that the Alabama court’s application of the law had violated the First and Fourteenth Amendments. Public officials could not try to muzzle news organizations by suing them for libel unless they could prove actual malice; it wasn’t enough to charge that a paper had printed something false. In other words, freedom of speech and of the press was too important to allow public figures like Sullivan to use the courts to silence the publication of things they didn’t like or that made them look bad—in this case, because the Montgomery police were mistreating civil rights protesters.
So whether Trump realizes it or not, he’s advocating for the dismantling of protections first put in place to allow newspapers to report on civil rights without fear they might be sued for libel. Put another way, Trump has placed himself squarely on the side of racist state officials in Civil Rights-era Alabama.
Does he care about freedom of speech and freedom of the press, or understand why those things are sacrosanct in American public life? Freedom of speech is a rare thing, after all. It’s one of the big differences between the United States and a place like Cuba, for example, where President Obama held a press junket on Monday. Cuba has no freedom of the press—or rule of law. Libel is whatever the regime says it is. Does Trump realize the slippery slope in front of him?
More to the point, is it possible to reason with Trump? The Post’s editors really tried. They kept coming back to the point about what he would change about the standard for libel, and Trump kept changing the subject and misdirecting, finally deferring to his lawyers. He did not appear to understand that the libel question has been settled in America. It was a hard-won lesson that came in the middle of a dark chapter in our history, and it protects something far more important than Trump’s public image.