Trump May Get A Chance To “Open Up The Libel Laws” After All

When Trump Made That Promise Repeatedly On The Campaign Trail, And After He Took Office, Nobody Really Knew What He Was Talking About, Or How He Would Do It…

Now, others might be doing it for him. Here’s Trump at a rally prior to his election, railing against “purposely negative and horrible” articles by news organizations and how he should be able to “sue them and win lots of money”. (Click on the photo to watch):

In a very odd piece of writing, Supreme Court Justice Clarence Thomas this week suggested a landmark 1964 libel decision New York Times v. Sullivan maybe should be revisited, with the implication that maybe it should be reversed. It was odd because Thomas was concurring with the Court’s decision not to hear a libel case brought by Kathrine McKee , after Bill Cosby’s lawyer accused her of lying. The fact that Justice Thomas questioning the Court’s interpretation of libel law might not even normally be such a big deal: Justice Antonin Scalia talked about it a lot. But these aren’t normal times. In Scalia’s days you didn’t have a President running around shouting that the media is the “ENEMY OF THE PEOPLE!” on almost a daily basis. Including Wednesday. So what’s potentially hugely significant, really, is the timing. The fact that Justice Thomas thought this might just be the most opportune time to blast a unanimous Court decision that’s held for 5 decades is significant.

Justice Clarence Thomas’ official Supreme Court photo

In some ways, his timing couldn’t have been better, because it dovetailed with a massive suit filed by Covington High School student Nicholas Sandmann’s family against the Washington Post. Sandmann appears in the now-iconic image below, where he spent some time silently face to face with a Native American protestor on a day when several demonstrations were happening concurrently in D.C. Lawyers say the Post “wrongfully targeted and bullied” the 16 year old, just because he was “the white, Catholic student” wearing a MAGA hat, and it wanted “to advance its well known and easily documented biased agenda” against the President.

This image has an empty alt attribute; its file name is iconicimage-1024x576.jpg
The now-iconic image at the center of a $250-million lawsuit

He and his family will probably file a bunch more suits because many news organizations reported it the same way the Post did, and many politicians Tweeted about it. This effort seems highly organized, which often happens when a suit is filed with the objective of getting it before the Supreme Court.

(This case doesn’t exactly line up with the ruling to which Thomas is referring, because the Times case pertains to people considered “public figures” of which Sandmann until recently was not.)

One of the interesting things in the Times case is that it’s about an advertisement, not an article in the Times. In the unanimous decision, Justice William Brennan wrote:

A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves “actual malice” — that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.

We’ve always wondered about that “actual malice” part, because you can publicize stuff that’s true with plenty of “actual malice”. The New York Times explains it well by saying:

That last term is misleading, as it has nothing to do with the ordinary meaning of malice in the sense of spite or ill will. To prove actual malice under the Sullivan decision, a libel plaintiff must show that the writer knew the disputed statement was false or had acted with ‘reckless disregard.'”

So for a journalist, it means they can’t publish anything they know to be untrue, or without checking it out, or they could be subject to a libel suit. But journalists can make mistakes. And are protected if they report something in good faith that turns out not to be true. As it should be.

Which means it’s very hard to bring libel suits because you almost need an email or a recording of a phone call with a reporting saying “I know this is not true, but I am going to report it anyway”. Or “I have no idea if this is true, but I’m going to report it anyway because I feel like smearing somebody today”. So it’s a high bar. Again, as it should be.

Which brings us back to Trump. We think in this country we often take for granted the fact that in many other countries–even in some highly developed democracies–it is often very hard to criticize people in positions of power, without risking financial ruin.

One of our editors remembers a time he attended a screening of a somewhat controversial documentary he’d produced, at a film festival in Brazil. Instead of the usual festival crowd, the audience was almost completely filled with guys in dark suits; lawyers. He and the director had made contingency plans for communicating with the media if they were arrested in the theater during or immediately after the film. They weren’t. Still, it was a wake-up call.

When Trump talks about “libel”, he isn’t only talking about people deliberately making stuff up, he also is saying he wants to be able to go after people who say things he doesn’t like: “hit pieces” he calls them. And in many other countries, you can.

Of course, if it became much easier to successfully sue for libel in this country, some of Trump’s best friends in the tabloid media world might quickly become among the most embattled.

Might have gotten Trump into trouble himself before he was President, like when he promoted his “birther” conspiracy theory about President Obama, or that Ted Cruz’ dad might’ve had a role in the assassination of JFK. Trump acknowledged as much in an interview with the New York Times, where he said:

Somebody said to me on that, they said, ‘You know, it’s a great idea softening up those laws, but you may get sued a lot more.’”

So in order for it to work the way Trump wants it to, not only would the Supreme Court’s view on libel vis-a-vis the 1st and 14th Amendment would have to change, it would also have to be selectively applied, which would seem pretty impossible to do. Unless of course the President had full control of both Congress and the Courts…

Separately, A unanimous ruling of note too from the Supreme Court: Justice Ruth Bader Ginsburg writing the decision in a case that involves a very hot topic right now: asset forfeiture. The Court overturned a lower court ruling involving a small-time heroin dealer in Indiana, who had a $42,000 Land Rover seized when he was arrested, and the state wanted to keep it and sell it on the grounds it had been used to transport drugs. Since the maximum possible financial penalty in a case of this kind is $10,000, the Court just affirmed a ruling they couldn’t automatically do that, under the 8th Amendment’s excessive-fines clause. Why is this so important? Because forfeiture has become a big business for some states and municipalities. As Justice Ginsburg further notes:

Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies.”

And even though this case was at the state level, the Trump Administration–especially former Attorney General Jeff Sessions–has been a big proponent of expanding asset forfeiture on the federal level. In fact, after Trump declared a national emergency to get his wall built, funds from asset forfeiture were one of the first sources the White House said it might tap.