At a rally in Texas last year, Donald Trump pledged to “open up our libel laws” in order to punish the many media outlets he has derided as “fake news.” He reiterated this more recently in a tweet, and his chief of staff, Reince Priebus, stated recently that the White House had “looked at” changing libel laws.
But at the same time that Trump calls for stripping Constitutional protections from his critics in the media, he has wrapped himself in the First Amendment to avoid personal legal liability. He was recently sued by three people who allege they were shoved and punched at a Trump campaign rally last year after the then-candidate incited the crowd, repeatedly growling “Get ‘em out of here.”
Trump’s lawyers argued that his order to the crowd — “get ‘em out of here” — was constitutionally protected speech. This case is at an early stage, but the federal judge hearing the case recently ruled that incitement to violence is not a form of speech protected by the First Amendment and that the plaintiffs had sufficiently demonstrated that Trump’s words had encouraged the use of force and violence as required by the Kentucky incitement statute.
Clearly, Trump wants things both ways. He’d strip First Amendment protections from his media critics while claiming them for himself when others are actually, physically hurt as a result of his words.
But the First Amendment does not work this way. The American philosophy of freedom of speech is based on the idea that speech must be as free as possible for all. The marketplace of ideas metaphor requires a “market” in which “good” speech can drive out “bad” speech, and the only way that can work is if entry into that marketplace is free. Thus, freedom of speech and of the press are guaranteed to all, the only exceptions being several narrow categories of speech such as obscenity, incitement, and a very few others — including libel and slander.
It is not surprising that Donald Trump would like to reduce media protections against libel suits. Trump has long been a vigorous practitioner of the art of the lawsuit, but he has never been very successful at it. Trump once sued an architecture critic for calling one of his projects “one of the silliest things anyone could inflict on New York or any other city.” Trump University sued one of its disgruntled former students for critical comments she made about it to the Better Business Bureau. Trump sued financial reporter Timothy O’Brien for suggesting that Trump was not as rich as he claimed to be. Trump even sued comedian Bill Maher for a joke he told in which Maher (parodying Trump’s claims about Barack Obama’s birth records) said he would donate $5 million to a charity of Trump’s choice if he released his birth certificate proving that his father was not an orangutan.
All of these lawsuits failed and Trump did not win lots of money, usually because as a public figure Trump was required to prove — and was unable to do so — that the defendants had acted with “actual malice.” This malice requirement — that a public figure must prove the allegedly libelous statement was made with knowledge of its falsity or with reckless disregard of whether it was true — stems from the 1964 Supreme Court judgment in New York Times v. Sullivan and was imposed in order to protect freedom of speech.
In the decades since the Sullivan decision the actual malice test has become a powerful shield for media organizations and individuals alike. It is undeniably difficult (but not impossible) for a public figure to prove actual malice and prevail in a libel lawsuit in the United States. It is this First Amendment protection that Trump would like to strip out of U.S. law, but to do so would require either a constitutional amendment or a new Supreme Court decision overturning Sullivan and the half-century of First Amendment precedents it spawned. Neither is very likely.
The rich irony is that Trump’s principal criticism of the news media is that they publish “fake news,” but the actual malice test currently in existence does not protect media organizations and journalists who knowingly publish false information.
Michael Newcity is a visiting professor of linguistics and Slavic and Eurasian Studies at Duke University.