In his battle against the media he deems to be the “enemy of the people,” Donald Trump has repeatedly called for America’s libel standards to be overhauled. As a candidate back in February 2016, Trump vowed: “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”
In 2018, as president, he tweeted along the same lines:
Isn’t it a shame that someone can write an article or book, totally make up stories and form a picture of a person that is literally the exact opposite of the fact, and get away with it without retribution or cost. Don’t know why Washington politicians don’t change libel laws?
— Donald J. Trump (@realDonaldTrump) September 5, 2018
America’s legal standard on libel is complex, and rooted in the Constitution. In the landmark New York Times v. Sullivan decision of 1964, the Supreme Court set a standard that public figures cannot recover damages for libel unless a publication published falsehoods with “actual malice” — a term that covers both gross recklessness and malicious intent. The decision was pegged to the protections of the First and Fourteenth amendments, and the case was decided unanimously. For decades, the precedent has given the press leeway to critique public officials without fear of being bankrupted for making an honest mistake.
But President Trump’s call to make it easier for public officials to sue publishers now has at least once receptive ear on the current Supreme Court. In a brief filed Tuesday, Justice Clarence Thomas assailed the Sullivan decision, advocating for the court to return the responsibility for libel law to the states. (Thomas’ brief was filed as a concurrence in the Supreme Court’s decision not to hear an appeal of a unsuccessful libel claim filed against Bill Cosby by one of his alleged victims.)
In the brief, Thomas decried the 1964 court, and the judges who have relied on the New York Times precedent, for producing “policy-driven decisions masquerading as constitutional law.” Thomas — a self-styled constitutional originalist — would like to take libel law standards back centuries. “The constitutional libel rules adopted by this Court in New York Times and its progeny broke sharply from the common law of libel,” he writes, citing practices dating as far back as 13th century England.
Under the ye-olde standards of common law, there was no safe harbor for publishers who might get their facts wrong about a public official. Indeed, Thomas writes, “the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels.” Thomas concludes his dense legal diatribe by insisting there is “little historical evidence” that current precedent “flows from the original understanding of the First or Fourteenth Amendment.”
Noting that federal courts did not “begin meddling in this area until… nearly 175 years after the First Amendment was ratified,” Thomas argues the court “should reconsider our jurisprudence in this area” and return the question to the states who “are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”
The call to throw out a bedrock precedent protecting the press is alarming at a time when sitting the president can’t take a joke from Saturday Night Live:
Nothing funny about tired Saturday Night Live on Fake News NBC! Question is, how do the Networks get away with these total Republican hit jobs without retribution? Likewise for many other shows? Very unfair and should be looked into. This is the real Collusion!
— Donald J. Trump (@realDonaldTrump) February 17, 2019
Encouragingly, none of the other far-right justices on the court signed onto Thomas’ brief, suggesting that, for the moment, Thomas and Trump share a lonely obsession. As Trump put it in a tweet from 2013: “The libel laws in this Country suck!”