//  5/16/17  //  Commentary

By most accounts, Donald Trump is not a fan of the press.  He has roundly demonized outlets from CNN to the New York Times with epithets from “FAKE” to “failing” to “lies!”  He even declared that “The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!”

One particularly brazen part of Trump’s attack on the press has been his assertion—both as a candidate and as President—that he will change the libel laws to make it easier to sue the media for unfavorable coverage.

While a candidate, he said that if he won the election, he would “open up” the libel laws, and he warned the press, “we’re going to have people sue you like you’ve never got sued before.”

He’s not given up since taking office.  “The failing @nytimes has disgraced the media world. Gotten me wrong for two solid years. Change libel laws?” he tweeted in March.  And last Sunday, Reince Preibus, the President’s Chief of Staff, suggested that the White House was looking at amending the Constitution to allow such changes to libel law. That’s a rather stunning assertion:  The White House is “looking at” a constitutional amendment to roll back the First Amendment.

There's a lot to say about all this, but let’s start with the basics.

First, what’s libel?  And will Trump succeed?

A libel lawsuit is a case seeking money damages for false statements that injure someone’s reputation.  If you publish a story that your neighbor is a convicted murderer when he is not, for example, your neighbor might be able to sue you for libel.  This type of lawsuit is older than the United States.

Several things stand in the way of Trump “opening up” libel law so he can easily sue the press.  First, libel is state law, meaning state courts and legislatures, not the President or federal government, set its rules.  The President can’t just decide what each of the fifty states will do.

Second, the First Amendment places sharp limits on libel suits that would prevent the sort of changes Trump seems to be hoping for.  Most importantly, the First Amendment bars public officials from establishing libel claims against those who publish even factual falsehoods about them, absent “actual malice.”  As the Supreme Court has made clear, to act with “actual malice” means acting with actual knowledge that a statement was false (or acting with reckless disregard of its truth or falsity).

Established in the landmark case New York Times v. Sullivan in 1964, that standard is, by design, difficult to meet.  In Sullivan, a Montgomery, Alabama Commissioner brought a libel action against the New York Times and several civil rights activists and clergymen for a full-page advertisement published in 1960.  The ad described southern black students’ “widespread nonviolent demonstrations,” and it elaborated, in detail, the ways in which their efforts were “being met by an unprecedented wave of terror.”

The ad’s descriptions of what occurred in Montgomery, however, included several inaccuracies.  For instance, it stated that students protesting on the steps of the state capitol sang My Country, ‘Tis of Thee when they actually sang the national anthem; and it asserted that Dr. Martin Luther King, Jr. had been arrested seven times, rather than four.

An Alabama jury found the Times and individual defendants liable for $500,000, a staggering sum at the time (equivalent to several million dollars today).  And that case was not alone.  By 1964, southern officials had mounted libel claims against news outlets for nearly $300 million in damages (over $2 billion today), largely for coverage of official resistance to integration and the civil rights movement.

In Sullivan, the Supreme Court decisively shut down such uses of libel law.  Justice Brennan, writing for a unanimous Court, held that imposing liability for false statements about a public official violates the First Amendment, absent actual malice.  Cases that more freely “impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors.”  That is a view, the Court said, that the Constitution rejects.  A fundamental principle of our constitutional system is that “debate on public issues should be uninhibited, robust, and wide-open,” including “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” 

In short, the First Amendment robustly protects the people’s ability to criticize the government and public officials—and therefore sharply limits officials’ ability to bring libel claims, even where critics don’t get every fact right.  

Sullivan’s principles are firmly established.  Strong Supreme Court majorities cutting across ideological divisions have supported robust First Amendment protections for speech about public figures and in the public sphere—and have done so for many decades (even recently protecting flat out lies about military honors).  At least some credible evidence suggests that Justice Gorsuch, too, will be a staunch advocate of free speech (see here, here, and here).

All of which is to say, without several more personnel changes on the Supreme Court, the likelihood that Trump will succeed in changing First Amendment law so that he can easily sue the press is incredibly unlikely.

Preibus’s suggestion of a constitutional amendment implies that he is informed enough to recognize as much.  If the Supreme Court holds firm, a constitutional amendment would be required to make Trump’s plan possible.  But a constitutional amendment has about a snowball’s chance.  Article V permits amendment only with the approval of two thirds of both houses of Congress or a convention called by the legislatures of two thirds of the states, and ratification by the legislatures or conventions of three fourths of the states.  That’s a nearly insurmountable hurdle, particularly in light of today’s partisan gridlock.

So Trump’s threat to “open up” the libel laws?  Going nowhere fast.

But that isn’t to say that Trump’s threats against the press—including his calls to change libel laws—aren’t important.

Trump’s hostility towards the press may give cover and encouragement to autocratic leaders around the world who oppress critics and the media, including with violence and imprisonment.  That is no small worry in light of threats to free press and expression globally.  The Committee to Protect Journalists, for example, reports that the imprisonment of journalists is at its highest number since 1990.  

But Trump’s anti-press tirades should worry us for another reason.  And not only because something is deeply wrong in American political life when the President talks about suing the press for coverage he doesn’t like and we are asking, seriously, how likely it is that he will succeed.

More generally, Trump’s anti-press rants—and the attention they receive—are worrisome because they demonstrate the effectiveness of his media campaign.  His wild claims, like this one, get enormous coverage.  How could they not?  He says, again and again, the FAKE MEDIA lies!  He garners daily attention, from tweets to cable news to Facebook to blogs, because of incendiary statements like these.

As I had the pleasure of hearing Tim Wu and Zeynep Tufekci discuss last week at the Knight First Amendment Institute at Columbia, the currency of today’s media environment is gaining, and maintaining, attention.  The authoritarian threat in our current media ecosystem may be less about cutting people off from information than keeping their sustained attention on—and away from—what the government wants.  

Here I am writing about libel … and not Russia, or taxes, or health care, or you name it.  And here you are reading it.  On that score, Trump’s outrageous threats are brilliantly successful, no matter how unlikely they are to formally succeed.

With our sustained attention, Trump can also repeatedly bring home his most important messages, including that fact-based journalism is nothing more than partisan opinion: that “[t]here is no truth, only competing attempts to grab power.”

I recently reread parts of Hannah Arendt’s Origins of Totalitarianism in preparing to teach a class on press freedoms.  I was struck by the continued acuity of her insight.

In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and that nothing was true.…

[M]ass leaders based their propaganda on the correct psychological assumption that, under such conditions, one could make people believe the most fantastic statements one day, and trust that if the next day they were given irrefutable proof of their falsehood, they would take refuge in cynicism; instead of deserting the lead­ers who had lied to them, they would protest that they had known all along that the statement was a lie and would admire the leaders for their superior tactical cleverness.

So is Trump a fan of the media?  In some ways he’s its biggest fan, and it—and we—are his.  And that may be the bigger problem.

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