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At the start of a Cabinet meeting yesterday, President Donald Trump reiterated his desire to "take a strong look at our country's libel laws," promising that "when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts." The remarks come on the heels of the president's threat of a libel suit against the author and publisher of the recent White House tell-all Fire and Fury.
But even with a friendly Congress at his back, the president would have a hard time making it easier to win a defamation or libel suit. That's because America's federal defamation and libel "laws" aren't really laws at all, in the sense of statutes and regulations that can be modified by congressional or executive action. They're Supreme Court precedents limiting what types of published statements can be judged libelous or defamatory.
Specifically, the Court's 1964 ruling in New York Times Co. v. Sullivan holds that false statements about public figures—specifically public officials—cannot be the basis for defamation or libel judgments unless they are "knowingly" or "recklessly" false.
This standard, somewhat misleadingly called "actual malice," makes it extremely difficult for a public figure to win a libel suit against a critical media outlet. It can be done, but the plaintiff has to prove the publication either knew that what it was printing was untrue and ran it anyway, or deliberately ignored obvious indicators that the story was false. Opinions, criticism, and even flat-out insults are categorically insufficient to satisfy the standard.
Because those standards come from the Supreme Court, there's no readily apparent way short of a constitutional amendment to broaden the range of published statements that can be punished as libel. Over time, of course, a president can reshape the judiciary by appointing new judges, but in a number of recent decisions the current Supreme Court has shown itself strongly disinclined to tinker with protective First Amendment precedents.
So what could Trump do to actually get what he wants? That's easy. Just replace half the current Supreme Court bench with justices he can be sure would reject a half-century's worth of free speech jurisprudence. Piece of cake.
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