Donald Trump can’t change the libel laws

February 27, 2016

Donald Trump can’t change the libel laws because they are based on the First Amendment rights to freedom of speech and freedom of the press.

Background

Every person has a duty to refrain from uttering false statements about others. Libel is a defamatory written statement while slander is a defamatory oral statement. Under common law a person could sue another person for defamation of character if the oral or written statement was false, negligently made and it caused financial injury.

Public officials and Public Figures

In New York Times v. Sullivan, 376 U.S. 254 (1964), the SCOTUS modified the common law rule to require public officials to prove that a false statement about them was uttered or published with ‘actual malice.’ That is, that the person or news organization knowingly or recklessly uttered or published the false statement and the statement caused financial injury. Actual malice is more difficult to prove. The SCOTUS decided to make it more difficult for public officials to prove up a case for defamation in order to protect the media’s right to free speech and free press in service to the public’s right to know what their public officials are doing. The Court reasoned that the easier to prove negligence standard unnecessarily restricted the flow of information in a competitive environment to be the first to break a story.

Congress cannot pass a law that restores the negligence standard because the actual malice standard is based on the First Amendment of the U.S. Constitution. Only the SCOTUS can change the law and it has shown no inclination to do so since it decided New York Times in 1964.

In fact, in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), the SCOTUS extended the actual malice test to public figures.

Conclusion

Donald Trump is a public figure who hopes to become a public official. He can attempt to intimidate journalists from reporting about him by threatening to sue them for statements he dislikes, but he will be wasting his time and making a fool out of himself. Heightened media scrutiny comes with the territory when you are running for president. The reporters and the organizations they work for know the rules.

He needs to stop whining and deal with it.


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