By Tony Mauro
As part of his critique of the “lamestream” news media, President Donald Trump has said the nation’s libel laws need to be “opened up” to make it easier for public officials like himself to undertake libel lawsuits.
But legal affairs journalist Dan Abrams cautions Trump to “be careful what you wish for.” Why? Because with loosened libel laws, Abrams thinks Trump himself could be the target of libel lawsuits brought by public officials after he leaves office. And there’s a precedent for that.
A new book by Abrams, titled “Theodore Roosevelt for the Defense,” chronicles a sensational 1915 trial in which Roosevelt was the target of a libel lawsuit brought by a New York politician.
In that early part of the 1900s, newspapers called it the “trial of the century” and “the greatest libel suit in history” because of Roosevelt’s celebrity status. Roosevelt, then six years after his tenure as president, endured eight days of questioning in a Syracuse, N.Y., courthouse.
Roosevelt was fighting against a libel lawsuit brought by William Barnes, a New York political figure who objected to being called corrupt by Roosevelt.
The charismatic ex-president seemed to relish the legal combat during the questioning at trial and he won over the jury and journalists in the packed courthouse. The jury ruled in favor of Roosevelt, and as Abrams put it, the former president “walked away from the trial politically unscathed if not emboldened.”
Nonetheless, Abrams said in an interview, it is important to realize that at the time, it was easy to sue political figures for libel. “The moment the plaintiff [Barnes, in this case] could show the comments were defamatory, made by the defendant and about the plaintiff, the burden flipped to the defendant [Roosevelt] to prove the truth of the comments,” Abrams said. “That can, and did, lead to a lot of frivolous lawsuits and wasted court time.”
But all that changed in 1964, long after the Roosevelt trial, when the U.S. Supreme Court issued the landmark ruling New York Times Co. v. Sullivan.
The decision imposed a “far higher hurdle” for public figures to sue for libel, Abrams wrote. Citing the First Amendment and the importance of “uninhibited, robust and wide-open” political debate, the court said that allowing too many libel suits against the media would cast a “pall of fear and timidity” and discourage criticism of public officials.
As a result, the court said public figures should have to prove “actual malice” on the part of the defendant, showing that “the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.” Abrams said it is conceivable that Trump could win a libel lawsuit under the rules of Times v. Sullivan, if it could be proven that allegedly false or libelous comments were made against him with “knowledge of their falsity.”
But Times v. Sullivan has discouraged and thwarted many libel suits since 1964, and when Trump says he wants libel laws changed, he likely means that he wants the “high hurdle” lowered. But if the precedent of Times v. Sullivan was swept away, the standards that allowed the Theodore Roosevelt trial to proceed in 1915 might reappear.
Does that mean that Trump could be the target of Roosevelt-like libel lawsuits for the disparaging tweets he often posts about public figures he does not like? Not necessarily.
Other Supreme Court decisions could also make it difficult to hit Trump with a flood of libel lawsuits. Nixon v. Fitzgerald in 1982 determined that a president is “entitled to absolute immunity from damages liability predicated on his official acts.” Clinton v. Jones in 1997 cited the Nixon case, but stressed that it gave “no support for an immunity for unofficial conduct.” It also left uncertain whether or not a president would be immune from being sued in state rather than federal courts.
Abrams acknowledged those rulings but said Trump could be targeted for libel lawsuits for his critical remarks “as long as they were not made in his official capacity. While that would be interpreted broadly, I think his purely personal insults could be actionable.” Abrams also said, “the next issue would be statute of limitations concerns which for these types of civil suits tend to range between one and three years.”
At one time soon after he won the presidential election, Trump seemed to realize that he could be the target of libel suits, though it did not keep him from criticizing his enemies or attacking libel laws since then.
“Actually,” Trump said in November 2016, “somebody said to me … ‘You know, it’s a great idea softening up those laws, but you may get sued a lot more.’ I said, ‘You know, you’re right, I never thought of that.’”
Tony Mauro is contributing writer to the Freedom Forum Institute and has been reporting on the U.S. Supreme Court since 1979, most recently for The National Law Journal and Law.com. He previously reported on the Supreme Court for Gannett News Service and USA TODAY.