Trump, Tired of Losing, Focuses on Changing Libel Laws

President Trump has made no secret of his war on the media–repeatedly criticizing what he calls “fake news.”  His opinions on reporting are well documented. So perhaps it’s no surprise that his administration has come out against laws which protect both free speech and free reporting. The Trump Chief of Staff recently mentioned in an interview that the Trump administration has sought to change how defamation laws–and especially libel laws function.

As of now, there have been no concrete steps taken to do this beyond the statement that the administration has been considering how it could change these laws. This position is something many have seen coming. Trump has said, even before he was elected that he desired to “open up our libel laws so when [media] write purposely negative and horrible and false articles, we can sue them and win lots of money.”

This would certainly help Trump himself, as he is a frequent flier when it comes to bringing or threatening defamation lawsuits–especially unsuccessful ones. With 43 different threatened defamation lawsuits and 5 lawsuits which he has actual brought, he is no stranger to defamation law. His lawsuits cover a variety of situations but all have one thing in common–no court has ever ruled in his favor on a defamation lawsuit.

With his long losing streak, Trump now seeks to change the rules in his favor. However, as he has learned with many of his executive orders, without an act of congress it is unlikely that he has any power to make the changes he desires. What’s more, much of defamation law is based in state law which further complicates things for Trump’s would be changes. So, with the law in little danger of changing in the immediate future, let’s look at how defamation law currently works and a little bit of Trump’s history with defamation lawsuits.

How Defamation Laws Work

Defamation itself is an enormous topic to cover, the law around it varies state by state and could fill volumes. However, we can at least give you a bit of a summary on the way it works. Defamation is a general term for a situation where somebody makes a false statement that damages your reputation. Slander can be generally understood as spoken defamation while libel can be understood as written defamation. A general claim of defamation requires the plaintiff to establish that a statement was made which: 1) negatively impacted the plaintiff’s reputation; 2) clearly referenced the party suing; 3) was communicated to at least one person who is not the plaintiff; 4) at least one person communicated the statement understood what the statement meant and who it referred to; 5) damaged the plaintiff’s reputation; and 6) wasn’t true.

In order to be defamatory, the statement must also be made as if it were factual as opposed to a opinion. This is because the truthfulness of an opinion is irrelevant if it is clearly the subjective opinion of just one person. However, where somebody says they have an opinion based on specific facts then the facts supporting their opinion can themselves be defamatory.

There are several situations where the requirements of proving defamation can be enhanced. Public officials, such as politicians, can only sue for defamation if the person making statements about them knew what they were saying was false. Public figures, celebrities and the like, can only sue if a person knew or should have known their statements were false. The statements must have been made with actual malice–purposefully made to harm the plaintiff’s reputation. Whether somebody is a public figure is generally based on their fame and notoriety. However, where somebody voluntarily puts themselves in the public eye on an issue–for instance by holding a press conference or bringing a lawsuit–they can make themselves a public figure for purposes of that particular topic.

There is a privilege, a sort of defense against defamation lawsuits, for statements published in a reasonable manner where there is public interest in the topic –often referred to as a newsworthiness exception. This means that the news can inaccurately report events–especially breaking news which has just come to light–so long as it doesn’t do so with the intent to harm a specific person’s reputation.  This is very hard to prove and is essential to the operations of quite a few news outlets.

There are a number of other defenses and privileges which protect a person from a defamation claim; as well as situations where something is more likely to be defamation based on the content of a statement; something known as per se defamation. However, they are too complex and numerous to fully discuss here. Suffice it to say, defamation is an area of law with substantial potential for misuse and abuse to attack the speech of others. It is crucial that people can protect their reputations. However, the law includes a great deal of protections against lawsuits encroaching on a person’s First Amendment rights. One of the most substantial of these is highlighted in a few of Trump’s own defamation lawsuits–Anti-SLAPP (Strategic Lawsuits Against Public Participation) laws.

Trump’s Use and Abuse of Defamation Lawsuits

As we’ve seen above, Trump loves to sue or countersue for libel However, he has never won any speech related lawsuit he has ever brought, never mind a libel case. The closest he’s ever come is an arbitration award after the opposing lawyer essentially committed malpractice in his poor handling of the case  One of the recent of these came up in the lawsuit brought against him for fraud over Trump University.

After the lawsuit was brought against him, Trump a counter claim of libel against those suing him. This claim was targeted by an Anti-SLAPP motion. Anti-SLAPP is a type of motion created in response to a trend of large corporations targeting critics with bogus defamation claims, knowing how costly the lawsuits were to defend these suits were brought essentially knowing they had no chance to win to chill speech. Thus, Anti-SLAPP was created to create a motion–before the expensive part of litigation–requiring a plaintiff to show that their lawsuit is brought with a reasonable probability of winning instead of being used to chill speech or make it hard for a plaintiff with less money to sue. After an appeal, Trump’s libel action was dismissed based on such an Anti-SLAPP motion.

This was the first time one of Trump’s defamation lawsuits was struck down on these grounds, but it does represent the culmination of a history of using defamation lawsuits in this manner. Previously, Trump unsuccessfully sued the Chicago Tribune and its architecture critic for–lo and behold–criticizing his decision to attempt to build the tallest building in the world and the design of his buildings. As a public figure, and one specifically famous for his buildings, the lawsuit had essentially no chance to begin with as there was absolutely no evidence of actual malice. What’s more, as a critique, the entire article was the opinion of the critic–once again making the lawsuit patently ridiculous. The court thoroughly dismantled Trump’s case. New York has no Anti-SLAPP laws outside of government proceedings, thus Anti-SLAPP wasn’t used although–under most statutes–it would have almost certainly won. Another lawsuit that smacks of Anti-SLAPP was when Trump sued an author for libel after he said in a book that Trump was not, in fact, a billionaire–although he himself completely failed to prove this an untrue statement in depositions on the case. In later interviews Trump told the press that he was happy to lose after five years in the courts, saying “I spent a couple of bucks on legal fees but they spent a whole lot more. I did it to make [the author’s] life miserable, which I’m happy about. This was basically an outright confession that he had abused defamation lawsuits to do the exact thing Anti-SLAPP prevents.

Trump has quite a history of frivolous lawsuits in general, but defamation has always been his weak point. It’s no surprise that he wants to target libel laws as weakening the protections against abusive defamation lawsuits would let him easily continue his current trend. Thankfully, such changes would require much more than he can accomplish on his own. For now, our speech is safe.