Following Donald J. Trump’s presidential election victory, the media is circling back and examining promises he made on the campaign trail. One in particular of potential consequence to the media itself is the February 2016 pledge to “open up our libel laws.” Is this legally possible? The New York Times says yes, but, much like the entire presidential campaign, it’s complicated.
The Times begins its thorough analysis by stating what many already know: “Libel is a matter of state law limited by the principles of the First Amendment.” Since presidents cannot impose their Executive power on state laws, President-elect Trump has two possible ways to create the change he seeks.
The first is to get the Supreme Court to overturn the 1964 landmark case of New York Times v. Sullivan. The court’s ruling that one would have to prove that statements were intentionally false, defamatory and made with “actual malice” set a high standard for libel that continues today. The Times also points out that a more conservative court could have little effect on overturning the case as it’s not a liberal versus conservative issue. Furthermore, the court has not addressed this matter in many, many years, a point that Los Angeles-based litigator and Popehat blogger, Ken White, also makes in The Wall Street Journal:
“Unlike, say, Roe v. Wade, nobody’s been trying to chip away at Sullivan for 52 years. It’s not a matter of controversy or pushback or questioning in judicial decisions. Though it’s been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable.”
But, says The Times, if the President-elect were successful, states with a dominant media presence like New York and California “could effectively make the protection available as a matter of state law.”
The second way is to attempt to change the Constitution, which experts have noted “would be arduous, certainly, but not impossible.”
But The Times considers an interesting consequence of such an effort: Could changing libel laws adversely affect President-elect Trump, who, along with his companies, has a litigious past? Once-private details could be made public and the future president, who was called a “libel bully” in a report by an American Bar Association committee, could find himself to be an uncomfortable defendant more often than an eager plaintiff.