Imagine a world where President Donald Trump’s dream to “change libel laws,” as he recently tweeted, comes true.
Let’s say the Supreme Court overrules several of its past First Amendment rulings, stripping away strong protections for free speech and a free press.
It would be open season for Trump to be sued for his inflammatory tweets.
ADVERTISEMENT
Trump might have even lost the $4-million libel lawsuit filed against him by political consultant, Cheri Jacobus, after Trump tweeted that Jacobus “begged” for a job for the Trump campaign, has “zero credibility,” and is a “major loser.” The New York judge in that case dismissed the lawsuit against Trump in January, ruling that Trump’s tweets from his personal account are protected by the First Amendment as non-factual hyperbole. Jacobus is appealing the dismissal.
The judge explained that Trump’s tweets are not given “serious consideration” as factual reports because Trump’s tweets were “rife with vague and simplistic insults such as ‘loser’ or ‘total loser’ or ‘totally biased loser,’ ‘dummy’ or ‘dope’ or ‘dumb,’ ‘zero/no credibility,’ ‘crazy’ or ‘wacko’ and ‘disaster.’” (PDF)
Perhaps Trump hopes the Supreme Court also will weaken the First Amendment protections for heated political speech so he can sue his political opponents.
But if the Supreme Court weakened protections for political speech, then Trump might lose a lawsuit filed against him by three protesters who claim that he incited violence against them by shouting to his supporters “get ’em out of here” at a March 2016 rally in Kentucky.
Trump’s lawyers might have to stop arguing that he “was not ‘inciting a riot’ but was rather exercising a core First Amendment freedom” when he said “get ’em out of here” and “don’t hurt ’em,” as his lawyers argued in a recent motion asking the court to dismiss the lawsuit.
So far, the federal judge presiding over the Kentucky lawsuit has rejected Trump’s First Amendment arguments, refusing to dismiss the case in a March 31 ruling. But it is early in the case and the court could accept Trump’s First Amendment arguments.
The libel rule that Trump hates the most and wishes the Supreme Court would change is the “actual malice” rule.
The actual malice rule was created in 1964 by the Supreme Court in its New York Times v. Sullivan decision. The court said that state libel laws must conform to the First Amendment, and to win a libel lawsuit, powerful public officials and public figures must prove that any false statement was published by a person who knew it was false or had serious doubts about its truth.
Trump has filed seven libel or other speech-related lawsuits in the past 30 years, and two of those cases were dismissed because Trump could not prove his critics published with actual malice.
But Trump should think twice about hoping that the Supreme Court would dump the actual malice rule because he might want to rely on the actual malice rule to defend himself against a libel lawsuit filed against him by Summer Zervos, a former contestant on NBC’s The Apprentice.
Zervos alleges in her January 2017 lawsuit that Trump defamed her during his campaign by calling her a liar after she publicly alleged that Trump had groped her during taping of The Apprentice.
So far, Trump’s lawyers are not relying on the First Amendment, but arguing instead that the Zervos lawsuit must be put on hold until Trump leaves office.
Trump’s dreams that the Supreme Court might change libel laws are just that, media attorneys say.
“The president can’t change the law, certainly not constitutional law that has been in place for over 50 years; only the Supreme Court can do that,” George Freeman, executive director of the Media Law Resource Center, said in an upcoming column for the Center.
Freeman said that he did not believe that a Supreme Court majority would vote to change First Amendment law governing libel, even with Trump’s pick, Neil Gorsuch on the bench.
The Trump administration also has “looked at” a constitutional amendment to weaken the First Amendment, White House Chief of Staff Reince Priebus said on Sunday. But he quickly admitted that “how that gets executed or whether that goes anywhere is a different story.”
That would require two-thirds of the vote in both the Senate and House of Representatives, plus ratification by three-quarters of the state legislatures, i.e., 38 states.
There was a brief moment after his election when Trump recognized he needed a strong First Amendment to protect his own speech.
When asked about his plans to change libel laws during a New York Times interview on Nov. 22, Trump said, “Actually, 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.’ I said, ‘You know, you’re right, I never thought about that.’ I said, ‘You know, I have to start thinking about that.’ So, I, I think you’ll be O.K. I think you’re going to be fine.”
Too bad Trump can’t keep that idea in his head.
