Trump doesn't understand libel law

President Trump has again threatened (or promised) to revise U.S. libel laws. He has been harping on this issue since early in the 2016 campaign.

He thinks U.S. libel laws are too lenient, that news media get away with printing falsehoods without having to pay damages to the plaintiff. On Wednesday, Trump again complained about libel laws: “Can’t say things that are false, knowingly false, and be able to smile as money pours into your bank account.We are going to take a very, very strong look at that.”

The president's remarks shows how little he knows about libel laws. Although he has frequently complained about being libeled and has been accused of libeling others, he obviously is unaware that falsehood is one of the elements of a libel lawsuit. Without falsehood, there is no libel.

Four elements must be proven in a successful libel lawsuit: defamation, publication, injury and identification. That is, the plaintiff must show that the particular statement was false and defamatory; that the false statement was "published" to persons other than the plaintiff and defendant, that the plaintiff was injured by the statement (e.g., harm to reputation or business), and that the statement identified the person filing the lawsuit (not necessarily by name). A successful plaintiff must prove all of these elements.

Trump frequently complains that he has been defamed by the "fake media," but he seldom, if ever, tries to show that the contested statement is false. Truth has been a defense against libel judgments in this country since 1736, when printer John Peter Zenger's attorney, Alexander Hamilton, persuaded the jury that Zenger's criticism of the King of England was truthful and therefore exempt from prosecution for libel. Truth has been accepted as a perfect defense in libel cases since then.

The president should also be aware that unlike the Zenger case, which was a criminal libel trial, nearly all libel cases today are not criminal but are civil lawsuits brought by an aggrieved complainant. These lawsuits are ruled by case law, the findings of past courts up to the Supreme Court. Case law has expanded libel defense many times over the past 250 years. Significantly, the 1964 New York Times v. Sullivan case, in which the U.S. Supreme Court ruled that public officials have to prove not only falsehood but also "actual malice" or "reckless disregard of the truth" to win a libel judgment. The Times had published a full-page advertisement (NOT a news story) that defamed an Alabama public official in an ad extolling the civil rights movement and Rev. Martin Luther King. This ruling gave the news media greater latitude to investigate and criticize public officials.

The Sullivan case made it more difficult for public officials to prove libel. Trump probably would like to change that, but he can't do that by executive order or even legislation. The actual malice standard is now constitutional law, and any attempt to change it would have to survive a Supreme Court challenge.

Trump should also be aware that it is very difficult for a plaintiff to win a libel suit over an editorial or other opinion. Courts have ruled that "there is no such thing as a false opinion."