Donald Trump Wants to Meddle With Press Freedom

The Republican candidate may want to “open up our libel laws,” but legal claims for libel arise under state laws.

By Anthony D. Romero, ACLU Executive Director

The following is a section of a longer piece analyzing the constitutionality of some of Donald Trump’s policy proposals. Click here to read “Donald Trump: A One-Man Constitutional Crisis” in full.

“We’re going to open up those libel laws.”

During a February campaign stop in Texas, Trump had news for The New York Times and The Washington Post: If he wins the presidency, the Times and the Post will “have problems.”

“One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” Trump said in Fort Worth.

“We’re going to open up those libel laws,” he continued. “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.”

Thankfully, the First Amendment — and freedom of the press in particular — would be safe under a Trump administration. That’s because there are no federal libel laws to “open up.” Legal claims for libel arise under state laws, which a President Trump could do nothing about. The president of the United States only has the power to sign and veto federal law passed by the U.S. Congress.

That said, if Donald Trump does win the White House, he could use his bully pulpit to encourage state legislatures to liberalize state-law restrictions on defamatory speech or persuade members of his party to introduce and pass a federal libel statute. Neither legislative horizon appears even remotely likely, partially because the scope of such laws is still limited by the First Amendment, which protects, among other things, the freedoms of speech and of the press.

The Constitution imposes a high barrier for libel suits brought by public officials, like Mr. Trump, by the very virtue of the power they wield in society. For a public official to win a libel suit, the plaintiff must not only show that the defendant published a false and defamatory statement — but that the defendant did so maliciously.

These robust protections are in place for a very good reason. In a democracy, public discourse is often heated. If the courts were to punish all false statements regardless of motive, observed a majority of the Supreme Court, it could “lead to intolerable self-censorship” by the media.

In other words, a journalist who published erroneous information about a public figure without knowing it was wrong is constitutionally protected. This critical limitation on libel laws, according to an earlier Supreme Court ruling, reflects our “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 unpleasantly sharp attacks on government and public officials.”

Despite his lack of legal authority to “open up our libel laws,” a President Trump would almost certainly limit the individual rights enshrined in the First Amendment. Regularly on the campaign trail, he has shown contempt not only for free speech but also the freedom of the press and the right to protest.

A month ago, Trump took to Facebook to denounce The Washington Post and make it harder for its reporters to cover his campaign. “Based on the incredibly inaccurate coverage and reporting of the record setting Trump campaign,” he wrote, “we are hereby revoking the press credentials of the phony and dishonest Washington Post.”

The Post now joins The Huffington Post, The Daily Beast, Politico, BuzzFeed News, Mother Jones, Gawker, Univision, and The Des Moines Register on Trump’s media blacklist. Kathleen Culver, associate director of the Center for Journalism Ethics at the University of Wisconsin-Madison, said the billionaire’s actions are making it harder and harder for reporters to do their jobs. “I think the Trump candidacy has challenged journalism more than virtually anything in my memory,” she told the Pittsburgh Post-Gazette.

Beyond revoking press credentials from some of the country’s most prestigious and popular media outlets, members of the media have been mocked and assaulted while covering his campaign. Last year, Trump mimicked the mannerisms of a reporter from The New York Times who has arthrogryposis, a rare disease that affects how a person’s limbs move. In March, Trump’s then-campaign manager grabbed the arm of Michelle Fields — a reporter from the conservative news site Breitbart — and yanked her away from Trump.

None of this should be surprising considering Trump’s open hostility toward the media. “I would never kill them, but I do hate them,” he said. “And some of them are such lying, disgusting people.”

Trump’s rhetoric and aggressive policing of his events also call into question how a Trump administration would respond to nonviolent protest. There have been at least 20 incidents of violence at Trump events since last October, according to the online news magazine Slate. In one of the earliest ones, a Black protester at a Trump rally was pummeled by the candidate’s supporters before being ejected. Trump’s response: “Maybe he should have been roughed up, because it was absolutely disgusting what he was doing.”

Some months later, Trump told a crowd at one of his rallies that he would “like to punch” a protester in the face who was thrown out of the event. When another Black protester was sucker-punched in the face by a Trump supporter, the candidate went so far as to float the idea of paying the man’s legal bills, who Trump said “obviously loves his country.”

While presidential candidates have every right under the First Amendment to control the message at their events and eject disruptive protesters, this behavior does not instill confidence in Trump’s reverence for the freedoms of speech, expression, and assembly. His words and actions on the campaign trail call into question how he would act if confronted with widespread and sustained protests.

The First Amendment is arguably the most important amendment of the Bill of Rights because it protects the means by which a nation governs itself. There is cause for concern that protected First Amendment freedoms would come under assault by a Trump administration, even if its proposed policies don’t stand a chance of surviving a legal challenge.