It’s a day of the week that ends in y, so that means that President Trump must be upset about the media again. This week he’s sounding a familiar theme: That he’s going to do something about libel laws. And, like every time he’s made these comments before, he’s showing that he’s as idiotic as he is thin-skinned.
This started almost two years ago, when on the campaign trail President Trump promised, if elected, to “open up our libel laws.” He was, as he still is, upset about newspapers and others in the media who “write purposely negative and horrible and false articles.” He wanted, and still does, to be able to sue them “and win lots of money.”
As anyone who follows the news knows, Trump has continued to rail against the media throughout his presidency, but this has taken on new relevance in light of the publication of Michael Wolff’s Fire and Fury. The president demanded the book not be published and has threatened to sue now that it has.
Rather than let the firestorm around the book peter out on its own, Trump has continued in his crusade against both the book and the media generally. In doing so, he went back to his favorite topic, libel laws. “Our current libel laws are a sham and a disgrace and do not represent American values or American fairness. So we’re going to take a strong look at that. You can’t say things that are false, knowingly false and be able to smile as money pours into your bank account.”
As with every other time he’s talked about libel laws, Trump again proved that he has absolutely no clue what he’s talking about. It’s impossible to overstate how idiotic these comments are for one simple reason: the president has nothing to do with American libel law.
This is the stuff of Law 101. Libel laws allow people to sue for written defamatory comments. Every state has its own body of law around libel. In contrast, the federal government has no law governing libel. This is one of those many areas of law – like almost all aspects of personal injury law – that the federal government has no say over. Rather, libel law is controlled by the law of 50 different states.
Maybe President Trump understands this and thinks that he has some say in state law? If so, he fails an even more basic aspect of Law 101 – that the president has no say in what laws states have. State governors, state legislatures and state courts do. The president can use his bully pulpit to talk about the issue, but no one has to listen.
That being said, there are two very tangential ways in which the federal government does or can have some say in libel law. First, the federal Constitution protects freedom of speech and press. In 1964, the U.S. Supreme Court ruled that the Constitution protects the press from libel lawsuits by public officials unless the public official can prove that the press acted with “actual malice,” meaning that the press knew the statement was false but published it anyway.
This ruling has formed a bedrock principle of American law for over half a century now. Giving Trump the most unwarranted benefit of the doubt ever in history, it’s possible he wants to revisit that ruling from the Supreme Court. But, to do so would require a really convoluted legal path that would be difficult to imagine happening for many reasons, not the least of which is that it would require Trump to open himself up to the revelations that come from a lawsuit. It would also require the Supreme Court to go back on this principle, something it has never shown an interest in doing. Alternatively, Trump could try to amend the Constitution to water down the First Amendment, but he’s more likely to have success building a wall to keep Canadians from crossing our northern border.
Second, Trump could persuade Congress to pass a law conditioning the receipt of federal money on states changing their libel laws to make it easier to sue the press. Congress is allowed to do this as long as it is not putting too much pressure on the states and the law is related to a federal interest. But this route is almost as unlikely as changing the Supreme Court. No one in Congress is going to have the appetite to push to change libel laws because, among other reasons, this area of the law is completely unrelated to federal interests.
In other words, there’s absolutely nothing doing here. Trump saying that he is going to “open up” libel laws or take a “strong look” at them is pure and utter nonsense that once again shows how utterly ignorant he is about basic points of American law.