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Norman Pearlstine: Trump’s move to tighten libel laws is unlikely to succeed
September 11, 2018
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Donald Trump hates to lose unless he wins by losing. So, when it comes to libel laws, the president seems happy to portray himself as a victim.

On Wednesday, in response to the publication of excerpts from author Bob Woodward’s new, critical book on his presidency, Trump called on “Washington politicians” to change our nation’s libel laws.

Earlier this year Trump called libel laws “a sham and a disgrace,” shortly after his lawyers had threatened a possible libel suit in an unsuccessful attempt to block publication of Michael Wolff’s “Fire and Fury: Inside the Trump White House.” He then renewed his campaign promise to “open up” America’s libel laws, pledging “to take a strong look” at them.

Neither Trump nor Congress can easily change defamation laws, and his own inflammatory rhetoric would most certainly be a casualty were libel laws toughened.

Trump has never brought a successful defamation case in court. Still, his lawsuits, including litigation deemed frivolous, are an effective tool for attacking his critics, forcing them to spend lots of time and money defending themselves.

A 2016 USA Today analysis found that Trump and his businesses had been involved in more than 4,000 lawsuits over 30 years in US state and federal courts, including seven speech-related actions brought against media outlets and other critics. It and a subsequent report commissioned by the American Bar Association showed these actions were part of a broader attack on the media that included countless cease-and-desist letters and threats of much more litigation.

Trump’s ability to change libel laws is limited by the First Amendment, the Supreme Court, and the fact that libel cases are decided in state courts interpreting the law of that state. The First Amendment prohibits Congress from passing any law that abridges “the freedom of speech, or of the press,” and the 14th Amendment extends that prohibition to the states.

The Supreme Court, in a 1961 case, laid down a “federal rule” requiring public officials to prove “actual malice” —that a statement was made with “the knowledge that it was false or with reckless disregard of whether it was false or not.” That landmark, 9-0 decision in New York Times Co. vs. Sullivan, has been extended in subsequent cases to include “public figures” as well as “public officials.”

While the president’s most prominent libel lawyer, Charles J. Harder, has effectively used privacy laws when suing media companies on behalf of celebrities, including Terry Bollea (a.k.a. Hulk Hogan), it is difficult to see how Trump could successfully assert his right to privacy extends to his actions in office or while campaigning.

Nor does the Supreme Court seem likely to reverse its libel rulings. Congress’ commitment to the First Amendment and that of the Supreme Court seem secure, even with the addition of a new justice to succeed Anthony Kennedy.

Tribune News Service

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