Hadas Gold at Politico, quoting Donald Trump:
“One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. 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. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”
While shield laws are designed to give reporters the right to refuse to give up their sources, journalists aren’t immune to being charged with libel.
Trump says that big newspapers are allowed to do what they want because they are “completely protected,” but that’s just not true. Proving libel, however, is difficult. According to the Associated Press Stylebook, a plaintiff must be able to prove these five things:
- A defamatory statement was made.
- The defamatory statement is a matter of fact, not opinion.
- The defamatory statement is false.
- The defamatory statement is about (“of and concerning”) the plaintiff.
- The defamatory statement was published with the requisite degree of “fault.”
The “actual malice” clause is often cited in libel cases, but the term is a little tricky. The thought is that if a reporter or organization published something with the knowledge that it was indeed false, it was done so with “actual malice.”
Trump claims that these newspapers are publishing “false articles,” but if the articles are factual, and merely contain content that he finds displeasing, it’s not libel.
Reporters are allowed to comment with opinion. Again, from the AP Stylebook:
The right of fair comment has been summarized as follows: “Everyone has a right to comment on matters of public interest and concern, provided they do so fairly and with an honest purpose. Such comments or criticism are not libelous, however severe in their terms, unless they are written maliciously. Thus it has been held that books, prints, pictures and statuary publicly exhibited, and the architecture of public buildings, and actors and exhibitors are all the legitimate subjects of newspapers’ criticism, and such criticism fairly and honestly made is not libelous, however strong the terms of censure may be.” (Hoeppner v. Dunkirk Pr. Co., 1930.)
Accurate reporting, no matter how distasteful it may feel to certain people, is a critical part of our democracy. The fact that a leading Presidential candidate wants to upset the balance is worrisome.
However, as with a lot of his comment, Trump is speaking to something that a President can’t actually control. Not only is Congress the branch of government in charge of laws, there are no federal libel laws. Libel is defined differently, state-to-state.
Loosening these laws is a troubling thought. Donald Trump can surely outgun just about any media organization on the planet when it comes to funding legal fights. The implication that he’d try to bend legislation for personal gain shouldn’t be surprising at this point, but it is terrifying.