Where’s the Beef? How Current Defamation Laws are Already What Donald Trump says He Wants

By:  Ridgeway Woulfe

       Since before his electoral college victory, President Trump has emphasized his intention to restructure libel laws to remove the protections currently in place.  He has called the current state of the laws a “sham” and says his solution is that “when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts.”  For lawyers, his answer is befuddling.  Courts have been using this approach for decades, and there has been little to no discussion of changing it.  For the purposes of this analysis, we’ll ignore that tightening restrictions largely benefits people like him (much like his tax plan), that the animosity in which he intends to limit freedom of the press is fascist, and that tightening defamation laws is at least as likely to open his supporters up to litigation (legal analysis isn’t needed to determine who makes more false and harmful statements).  Instead, this post will focus on the current status of defamation law and how it corresponds with what the president says he is looking for.

         To start, it should be noted that there is NO federal statute for defamation.  Instead, defamation lawsuits are governed by common law and state statutes.  This doesn’t mean the federal government couldn’t make a law which changes how defamation cases work throughout the country.  If he could convince Congress to pass legislation, everyone in the country could be subject to new standards, requirements of proof, remedies available, who is liable for defamation, and more.  Not only is the president wrongly relying upon defamation being uniform in order to form his attack, but he is suggesting demolishing the entire existing structure because of what he considers unfair reporting against him.

         Since defamation laws are not uniform, we’ll discuss the general concepts which tend to govern defamation, as to avoid the confusion and length that would come with detailing all of the variations.  In order to win a defamation case, the person bringing the case generally must show the following 5 requirements are met: (1) a person made a defamatory statement, meaning a statement which would injure one’s reputation; (2) the statement is about the person bringing the suit; (3) the statement is made to a third party who can understand the statement; (4) the person’s reputation is actually harmed by the statement; and (5) the statement was false.

         There are two key ways in which this equation can be altered.  First is if the statement is about a matter of public concern, then the declarant needs to have been at least negligent in their reporting of the statement.  Second, if the person whom the statement was about is a public official or public figure (i.e. government worker or celebrity), then there can only be recovery if the statement was made recklessly or with malice.  Additionally, public figures must show actual damages resulting from the statement (i.e. a calculable cost).  The Supreme Court has carved out these exceptions due to the Constitutional importance of freedom of the press.

         When he speaks about “opening up” defamation laws, the president is likely talking only about the special circumstances which have applied to him.  First is regarding issues of public concern, such as a real estate mogul engaging in discriminatory lawsuits.  In this case, the only additional thing to show is that the declarant acted outside the reasonable care owed. This version of defamation cases is unlikely to be the target of Trump’s aggression, as it allows for a great deal of damages with fairly low requirements.

         Second, and probably more important to his goals, is for public figures/officials.  Given his pursuit of the limelight throughout his life, Trump has been operating under this standard for most of his life.  It has meant he must show the declarant acted recklessly or intentionally in making false reports.  Then, he could only recover for actual harm.  Both standards were created to protect the freedom of the press, contained in the First Amendment.  The second standard raised the requirement because of the importance of the press in counter-balancing tyrant-leaning governments.  If a false report could bankrupt some news-reporting companies, or people, they are far less likely to negatively report, depriving The People of information they need.

         So, if he were all-powerful, what would Trump change?  First, he’d likely remove the reckless/intentional requirement, so as to hold people liable to reasonable mistakes.  Second, he would likely allow or require courts to award higher damages beyond actual damages.  Third, he would probably remove the requirement for there to actually be damages, so that people could recover simply from false statements about them, without having suffered any consequences from the statement.

        Could he actually make the changes a reality?  Not really.  Even if he were able to pass legislation on the issues, any changes would likely be struck down.  Defamation is already an inhibition upon First Amendment rights, so making it easier to win is difficult to accomplish.  And since the bulk, if not all areas, of his potential changes have to do with the special requirements for public figures were specifically crafted to ensure Constitutional compliance, the Supreme Court is unlikely to allow any lessening of the requirements, no matter how delicately crafted the legislation was.  As the Supreme Court can strike down unconstitutional legislation by itself, there is little likelihood these changes would stand.

         If he won’t succeed in changing the defamation laws, why does it matter?  It exemplifies Trump’s self-focused approach to policy.  As mentioned above, his only realistic target is to make attaining remedies easier for himself.  His own “highly anticipated” Fake News Awards belies the types of lawsuits he hopes to “win lots of money” from.  Within this top 11 list (awards? nominees?  I’m not quite sure what to call it), he recognizes fake news in the form of a collusion story which is still being investigated, a prediction about what James Comey would say, a report about whether a person shook his hand, a video edited showing him dumping a large amount of food into a koi pond, false reporting of crowd size using a deceptive picture, a report that he removed a statue when he just moved it, and multiple reports which were retracted. 

         These are the miniscule details which he wants to sue reporters for, and he would if he could.  Sure, making a big deal about small errors provides a distraction and sows seeds of doubt in the media he dislikes, but his hyper-image-consciousness does more than that.  It is also his attempt to “chill” negative coverage of him, humiliating and threatening the press for any missteps, much as any bully does.  Much like his “see you in court” threat, his informed adversaries have held their ground, knowing he is bluffing for other purposes.  Still, knowing the self-serving nature of changing defamation laws is important to preventing him from violating the Constitution in his pursuit: temporarily restricting and chilling criticisms of the government.

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