Originally published in California Publisher, Summer 2016.
Donald Trump has made it clear he wants to make it easier to win lawsuits against the press.
“We’re going to open up libel laws, and we’re going to have people sue you like you’ve never got sued before,” the Republican presidential candidate told the media at a February rally in Texas.
In doing so, Trump is likely channeling the ghosts of L.B. Sullivan and other Alabama government officials who, in 1960, sued the New York Times over an advertisement supporting civil rights protestors. The ad didn’t name Sullivan, but it criticized the “wave of terror” that citizens faced as they sought equality in education and voting rights.
Sullivan argued the advertisement sullied the good name of Alabama government officials, including himself. An Alabama jury agreed, ordering the Times to pay $500,000 in damages.
The basis for the libel claim were minor factual errors in the ad. For example, it got the name wrong of a song sang by protestors (it was the National Anthem, not ‘My Country, ’Tis of Thee) and said Martin Luther King had been arrested only four times, not seven, as the text claimed.
The Supreme Court of Alabama upheld the judgment. Other officials filed subsequent lawsuits against the Times, threatening millions in damages.
Left to stand, the judgments threatened the very existence of the Times and a free press.
“Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive,” wrote Justice William Brennan in the 1964 landmark U.S. Supreme Court decision New York Times v. Sullivan.
In throwing out the judgment and siding with the Times, the Supreme Court ushered in a new First Amendment framework for libel law.
“(W)e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasant sharp attacks on government and public officials,” the Court wrote.
Libel laws are state laws, but the Sullivan decision put new First Amendment limits on state actions. The Sullivan rule, which has governed libel law in the United States for the last half-century, is that public officials cannot recover damages for false, defamatory statements unless the defendant acted with “actual malice.” The case has long been heralded as one of the most important press freedom decisions ever decided by the Supreme Court. First Amendment philosopher Alexander Meiklejohn called it “an occasion for dancing in the streets.”
And it is that precedent that Donald Trump wants to chip away at when he says he’s going to “open up” the nation’s libel laws.
“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,” Trump said.
While Trump has masterfully used the press as a messenger for his candidacy, he’s also been more vindictive than any presidential candidate in recent history.
Trump has a growing “blacklist” of news organizations banned from covering his campaign events, including the Washington Post, Politico, BuzzFeed, Univision, the Daily Beast and the Huffington Post.
Trump also has experience suing journalists. In 1985, Trump sued the Chicago Tribune over an article criticizing a Trump building, and in 2005, Trump sued a book author who questioned Trump’s net wealth. Both cases were dismissed.
Believe it or not, Trump’s hair is the latest subject of the latest lawsuit threat against the media, over a story with the headline, “Is Donald Trump’s Hair a $60,000 Weave? A Gawker Investigation.”
Lawyer Charles J. Harder is threatening to sue the website Gawker if it doesn’t retract the article. Harder is the attorney representing Hulk Hogan in his privacy lawsuit against Gawker, funded in part by Silicon Valley billionaire Peter Thiel. Thiel, a Trump backer, has admitted that he is funding several lawsuits against Gawker, and the judgments could shut down the media company. Gawker has filed for bankruptcy in wake of the $140 million Hogan judgment.
Even Republicans in Congress are worried about Trump’s penchant for going after critics. Some lawmakers are pushing hard to pass a bill to limit “Strategic Lawsuits Against Public Participation” before the November election. A federal “anti-SLAPP” law is modeled after legislation in several states and would make it easier to dismiss frivolous lawsuits involving free speech. “Obama will sign this. I don’t think Trump will,” Texas Republican Blake Farenthold said in early June.
All presidents have had problems with the press, and some have been aggressive in their antagonism. Richard Nixon sought a prior restraint against the New York Times and Washington Post from publishing the Pentagon Papers. George Bush and Barack Obama threatened journalists with jail to coerce them into revealing confidential sources. But none seem were as thin-skinned and open about their contempt of journalists than Trump.
With President Barack Obama’s nomination of Judge Merrick Garland to the Supreme Court seemingly blocked by Republicans until Obama’s replacement is elected, it could well be that one of the first actions taken by a President Trump would be the nomination of a Supreme Court justice.
Who Trump would nominate is anyone’s guess. Republicans would be motivated to replace Justice Antonin Scalia with a nominee who fits his mold.
Notably, Scalia was a critic of the Sullivan decision.
At a 2011 forum at the Newseum, Scalia criticized the Sullivan decision as judicial overreach, an example of a living constitution approach to judicial interpretation that was contrary to his textualist and original intent philosophies.
“(T)he Court thought in modern society, it’d be a good idea if the press could say a lot of stuff about public figures without having to worry,” Scalia said. “And that may be correct, that may be right, but if it was right it should have been adopted by the people.”
Scalia went even further in 2012 interview with Charlie Rose. “One of the evolutionary provisions that I abhor is New York Times v. Sullivan,” Scalia said. “Who told Earl Warren and the Supreme that what had been accepted libel law for a couple hundred years was no longer?”
Law changes over time. First Amendment protections today are much different than they were in 1964, not to mention in 1919. The framework of libel law seems settled today. But with a little imagination, it’s possible to envision a Trump Supreme Court that supports his views — and the ghost of L.B. Sullivan returns to life.
Jason M. Shepard, Ph.D., is chair of the Department of Communications at California State University, Fullerton. His primary research expertise is in media law, and he teaches courses in journalism, and media law, history and ethics. Contact him at email@example.com or on Twitter at @jasonmshepard.