There is not much evidence that Donald Trump respects the independence of the federal judiciary, or that he appreciates constitutional limits on the power of the president. But even a broken clock is right twice a day. On one legal issue, Trump raises a legitimate question: Have courts gone too far in protecting libelous speech?
Here’s what Trump said:
“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. 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.”
It’s predictable that journalists would hate that statement, which is not exactly a model of clarity or statesmanship. But Trump is onto something.
He is evidently complaining about the Supreme Court’s 1964 decision in New York Times v. Sullivan. For well over 150 years, everyone understood that the law of libel would be established by the states, which did indeed allow people to sue newspapers for “purposely negative and horrible and false articles.” The court had never ruled that the First Amendment stands as an obstacle to such suits. The Sullivan case changed all that.
The court ruled that under the First Amendment, public officials are entitled to damages only if they demonstrate that the writers (or speakers) acted with what the court described as “actual malice.” That term means officials must show that the writers actually knew that the statement was false, or that they acted with “reckless indifference” to the question of truth or falsity. (The court soon extended its ruling to all public figures, including famous movie actors, musicians and television stars.)
That’s a tough standard to meet. Under the court’s ruling, a “purposely negative and horrible” article is usually protected, even if it is clearly false (and devastatingly harmful). The requirement of reckless indifference means that writers can get away with a lot of falsehoods — claiming, for example, that a politician or a movie star is a cocaine addict, a tax cheat, or a Communist sympathizer.
It’s hardly illegitimate for a presidential candidate to criticize a free speech decision of the Supreme Court. President Barack Obama himself did exactly that — and in a state of the union address no less, with six of the justices sitting right in front of him.
In 2010, Obama said that the court’s decision in the Citizens United case “will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.” He called on “Democrats and Republicans to pass a bill that helps to correct some of these problems.”
Trump’s criticism of the Sullivan decision can be taken to fall in the same general category. Unlike his unconscionable attacks on the “Mexican heritage” of Indiana-born Judge Gonzalo Curiel, Trump’s objection to the court’s libel ruling didn’t cross any lines of decency and propriety.
But is he right? Though he raises a fair concern, the answer is probably no — at least if he really wants people to be able to sue for “lots of money” whenever there is a “purposely negative and horrible and false” statement or story. In fact, Trump should hesitate before embracing that standard.
Trump has claimed, for example, that Obama was born outside of the U.S., and that Ted Cruz’s father was involved in the assassination of John F. Kennedy. Both claims are purposely negative and horrible (and false). But under New York Times v. Sullivan, the First Amendment might ultimately protect them. Trump should be grateful.
Still, Trump isn’t wrong to question current law. Suppose a newspaper makes an unambiguously false statement, is negligent in doing so, and seriously damages someone’s reputation. You could make a good argument that at the very least, states should be allowed to give people a right to a retraction — and perhaps to some kind of nominal damage award (say, $100).
In that respect, it might well make sense to “open up” the law of libel. Would it be so terrible to say that newspapers should be held accountable for negligent and libelous falsehoods, and that they should have to correct the record?
Any right to “lots of money” would raise different issues, because the prospect of crippling damage judgments would likely create an excessive chilling effect on the press. Those who believe in freedom of speech are right to object to that prospect. But it remains legitimate for Trump to suggest that without violating anyone’s freedom, states should be allowed to do more to protect people’s reputations.
Cass Sunstein is director of the Harvard Law School’s program on behavioral economics and public policy.