Editor’s Note: Danny Cevallos (@CevallosLaw) is a CNN legal analyst and a personal injury and criminal defense attorney practicing in New York, Pennsylvania and the US Virgin Islands. The opinions expressed in this commentary are his.
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Danny Cevallos: President Donald Trump cannot change US libel law
Even if he could, Trump would wind up being a victim of the change
In a television interview on Sunday, Chief of Staff Reince Priebus repeated President Donald Trump’s oft-expressed interest in making it legally easier to sue news organizations for libel.
It’s something they’ve discussed for a long time. In a tweet in late March, President Trump impugned the reputation of what he called the “failing” New York Times, tweeting that the paper’s coverage has “disgraced the media world.” In the same tweet, the President asked the rhetorical question: “Change libel laws?”
Priebus said on Sunday that changing defamation law is “something we’ve looked at.”
No they haven’t.
Priebus and the Trump team have not “looked at” changing the law of defamation, unless he means that they walked into a law library and “looked at” the books lining the wall. Sure, Trump might have even raised the question at a staff meeting, but the dialogue would have gone something like:
Trump: I want to change libel law.
Terrified aide: You can’t do that.
What would these proposed changes to the law of defamation be, anyway? Trump had a more specific vision when he was just a candidate, and before he was elected president. Back on the campaign trail, Trump promised to “open up our libel laws so when (news organizations) write purposely negative and horrible and false articles, we can sue them and win lots of money.”
Trump promised a new legal landscape back then, where, if the “New York Times writes a hit piece which is a total disgrace or when The Washington Post … writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”
When he was still the Republican presidential nominee, Trump expressed a preference for British law, a “system where you can actually sue if someone says something wrong.”
Trump knows he can’t change the law of defamation as president. That’s why his desire to “open up” libel laws has devolved from a specific plan, to a vague expression of hope: Make America great again … like back when it was under British rule. Before there was a Constitution. Or the United States of America.
Of course, British defamation law is not restrained by the First Amendment because Britain doesn’t have a First Amendment, or a written Constitution, for that matter.
Unlike US law, British law values an individual’s reputation more than it values freedom of expression. In these cases there’s also a huge difference between the countries in the burden of proof applied. In the States, when a plaintiff like Melania Trump sues a news organization like the Daily Mail for alleging that she worked as an escort, the burden is on her as the plaintiff to prove the falsity of the defendant’s statements.
In the States, the publisher’s statement is essentially presumed true, because the plaintiff has the burden to prove it false. In a libel lawsuit in Britain, the statement is presumed false, and the burden is on the publisher to prove each material fact is substantially true.
The Supreme Court has also long held that public officials like Trump cannot sue for defamation unless they prove that a false statement was made with “actual malice.” Under this, commonly known as the “Sullivan” standard (after the 1964 Supreme Court case of New York Times v. Sullivan), the plaintiff must show that the publisher either knew the statements were false, or recklessly disregarded the falsity of the statements. By contrast, Britain’s Parliament has considered, and ultimately rejected, incorporating a Sullivan defense in its laws.
The truth is, Trump knows he can’t change defamation law. Speech critical of him is safeguarded by the Constitution. He could propose an amendment to the First Amendment, but come on. Technically, he’s not even able to do that. An amendment may be “proposed” by Congress in one of two ways. One way is with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, two-thirds of the state legislatures could call a constitutional convention, but that’s never happened. The president does not have a constitutional role in the amendment process, and the resolution does not even go to the president for approval.
It’s just as well. Even if he could change the law, Trump wouldn’t actually want the British legal system anyway. It’s better for him to just say he wants it. Ironically, Trump, perhaps more than anyone in human history, depends upon news organizations, to publish his own statements trashing his enemies. To “open up” libel law would mean open season on Trump himself, to be sued for defamation.
If Trump truly wanted to sue all these “failing” news organizations for libel under a British system, he could … in Britain. It’s called “libel tourism” and it happens all the time. Thanks to technology, news stories and statements are disseminated around the globe, on websites, or television networks. Plaintiffs often travel to a jurisdiction like Great Britain, where the statement was “published,” sue for defamation there, win under that jurisdiction’s plaintiff-friendly laws – and then return to US courts to enforce their judgment obtained abroad.
In 2010, Congress passed and President Barack Obama signed the SPEECH Act, a bill that sought to provide protections for American writers and publishers from libel suits filed in other nations. A Senate cosponsor of that act was Trump’s Attorney General Jeff Sessions.
But Trump isn’t really serious about making newspapers and news networks strictly liable for their reporting here in the States. Of course, sometimes the Trumps might have a viable defamation lawsuit, like Melania’s against the Daily Mail. But overall, even if Trump could “open up” libel law (which he can’t), he would never actually want to sue over every negative, “horrible” story the New York Times or the Washington Post publishes.
He needs these publishers around to publish all of his own negative statements about other “nasty” people. Trump may publicly praise the British system of defamation law, but privately, to him, American libel law is what makes America great … again.