Lawsplainer: About Trump "Opening Up" Libel Laws

Donald Trump famously said he'd like to "open up" libel laws. How much should that concern you?

From my perspective — as a First Amendment advocate and an opponent of Trump — it should concern you as an attitude about speech, but not much as a policy agenda.

Let's start with what he said.

"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. 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.

I begin with the proposition that Trump is a bullshitter. The polite way to put that is that he says things that are not intended to be taken as factual statements. Was this one? Was it merely emotive? Did he think he could do this sort of thing? It's anybody's guess. My guess it that it was mostly bullshit — worrying in terms of his attitude towards free expression, but not a policy agenda.

Let's talk about the substance, such as it is.

Trump complains about the press being able to run "hit pieces" and purposely "negative and horrible and false" articles. Part of that is true and part is false. The press can absolutely run hit pieces and negative and horrible articles. We don't have sedition laws any more, and it's not illegal to be biased or "unfair" in a philosophical sense. Only false statements of fact can be defamatory. Arguments, characterizations, insults, and aspersions can't be, unless they are premised on explicit or implied false statements of fact.

When a public figure like Trump sues for defamation, they must prove that the defendant made a false statement with actual malice — that is, they must show that the statement was false and that the defendant either knew it was false or recklessly disregarded whether or not it was false. "Reckless disregard" means something like deliberately ignoring manifest signs that the statement was false. That's been the standard since New York Times v. Sullivan in 1964. Note that even under this standard, a media outlet that wrote a "purposely . . . false" statement of fact can be held liable. It's a difficult standard, but it can be done, as Rolling Stone found out this month.

So. There are two impediments to Trump and his sympathizers being able to sue whomever they want for "hit pieces" or "negative" and "horrible" statements. First, there's the requirement that defamation involve a statement of fact, not an opinion or insult. Second, there's the actual malice standard that applies to defamation claims against public figures.

Trump doesn't have a clear way to "open up" either one.

Defamation is a creature of state law, not federal law. When you sue someone for defamation, you do so under a statute or the common law of one of the states, not under federal law. You might sue in federal court if that court has jurisdiction (a tedious discussion I'll spare you today), but that doesn't make defamation law federal — you'd still be suing under state law. Federal law touches defamation law only to this extent: since 1964 both state and federal courts have applied First Amendment standards to defamation claims, and First Amendment law is often developed by federal courts. In addition, a few overarching federal laws limit state defamation law (for instance, Section 230 of the Communications Decency Act, which says that a service provider isn't liable for defamation based on what a user posts, and the SPEECH Act, which prevents enforcement of foreign libel judgments in U.S. courts unless those judgments comply with First Amendment standards).

As President, Trump will appoint federal judges, from the Supreme Court to the various Courts of Appeal to the trial judges on the many District Courts. But that's not a clear or easy path to "opening up" defamation law and changing either the actual malice standard or the requirement that defamation involve false statements of fact. The Supreme Court has supported the First Amendment very strongly in the last generation, particularly in comparison with other rights. The Court has repeatedly rejected recent attempts to create new exceptions to the First Amendment or to narrow it. Consider Snyder v. Phelps, in which the Supreme Court ruled 8-1 that Westboro Baptist Church protests at funerals were protected speech. That represented a firm refutation of the notion that speech could be limited because it is hurtful or offensive. Or consider the somewhat obscure but incredibly important United States v. Stevens, in which the Court — ruling 8-1 again — overturned a federal law against "crush videos" (don't ask) and sternly rebuked the government's position that courts can create new ad hoc exceptions to the First Amendment based on a weighing of the value of speech. Or consider Reed v. Town of Gilbert last year, in which the Court unanimously (though with some justices taking a different route) held the line on the idea that laws that restrict speech based on content are subject to strict scrutiny.

Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above.1 You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find ones who would reliably overturn Sullivan and its progeny. It's an outlying view — not chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial — at least not from conservatives. There's been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there's no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of "hate speech" and other "hurtful" words. It seems unlikely that Trump would appoint any of these.

In short, there's no big eager group of "overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

So: whether or not Trump really wants to "open up" defamation law, it's unlikely he can.

The statement remains concerning, though, because it displays a contempt towards First Amendment values and freedom of the press. It carelessly conflates false statements and negative coverage. It encourages the public to scorn First Amendment rights, and the public already does that enough already. It also likely encourages defamation litigation, which by its nature silences speech through the expense and stress of litigation even when the defendant prevails. For those, I condemn Trump.

  1. Scalia's objection to Sullivan is not perfectly clear, but I understand it to be that the Framers regarded defamation law as established and not limited by the First Amendment — that is, that common law defamation was considered part of the natural background not disturbed by the First Amendment. Another way to put this — and an argument you'll see sometime — is that the Supreme Court was wrong in Sullivan because a defamation case does not involve state action — the government is not limiting anyone's speech, it's a private dispute. As I've said before, I think that is unworkable and that Sullivan is correctly decided. When you sue someone for defamation you are using a state law and relying on the compulsion of the state court. To convince a die-hard Trump supporter, I'd say this: if Sullivan is wrong, then a state could pass a law allowing anyone to sue you for hurting their feelings.  

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Comments

  1. MakingAmericaGreatAgain says

    We don't have sedition laws any more

    All the rest of this is a First Amendment red herring. Trump's court doesn't need to even glance at Sullivan. Simple problem. Simple solution.

  2. Hillsborough Non-hipster says

    "I begin with the proposition that Trump is a bullshitter."

    That is a remarkably sound legal position.

  3. tehy says

    i come here not to praise Trump. But neither to bury him.

    I think it's clear that media has gained too much power and has become too dishonest. There's no good solution to this, and Trump picked one of the worst, which also may reveal his general stances.

    But…it's a real problem. And I wonder if that doesn't mean that his stance on the 1st Amendment is as bad as you're making it out to be; he's willing to abridge it, yes, but not because of narcissism, but rather because he feels that he needs a solution to a real problem. And that's not to say that I support this solution at all, but there isn't a different one I support either, short of "cultural change" which is terribly difficult to actually pull off (thus making it a bad solution too, despite being my preferred one).

  4. Brian Z says

    @tehy

    I think it's clear that media has gained too much power and has become too dishonest. […] But…it's a real problem.

    If it's clear the media have too much power, how much power can we agree they ought to have? How dishonest can we agree they ought to be?

    How can I tell the difference between an honest candidate complaining about dishonest media and a dishonest candidate complaining about honest media?

    If it's a real problem, whose problem is it? Do people have some recourse? Can they decide for themselves which media sources to trust or not to trust?

    Is it a good idea to change our laws so that elected and appointed judges decide who controls the messages of the media?

    I wonder if that doesn't mean that his stance on the 1st Amendment is as bad as you're making it out to be; he's willing to abridge it, yes, but not because of narcissism, but rather because he feels that he needs a solution to a real problem

    When someone proposes to so radically alter our society's laws and values, I don't give a shit about that person's motives. Bad idea is bad idea.

  5. Dorothy M. says

    SCOTUS found the state law against crush videos to be too vague. Can we expect to see a re-written version of that law hopefully pass and stand up to review? The practice is certainly illegal by any animal cruelty standards — wouldn't showing / viewing such films be an extension of that illegal practice? I'm pretty sure that showing / viewing snuff films is still illegal. Hard to understand how these things are decided. But it seems to me SCOTUS left the door open for making the viewing of crush films to be made illegal. Maybe that is just wishful thinking on my part.

  6. SJE says

    I hope that the left gets a new appreciation for the First Amendment.

    After pushing for "hate speech" designations and "safe zones", the left now finds itself on the other side with an incoming government now trying to punish its speech.

    More importantly, the policing of speech is part of what lead to Trump. People could not express certain opinions or views without being labeled as hateful or motivated by bias, which left unsaid various anxieties. i.e.
    -Criticism of Hilary was labeled too readily as anti-women, which stifled a proper discussion of the weaknesses of that PARTICULAR woman.
    -It appears most discussion of immigration was either (a) complete acceptance of the current situation or (b) very racist, leaving not a lot of room for actual debate.

  7. Thter Phiel says

    Purely hypothetically, could one satisfy the "actual malice" requirement by presenting evidence that a newspaper coordinated with your favoured candidate's political opponents to create and publish a libelous article about you?

    Just asking for a friend.

    P.S. a revised "crush video" law was already passed in 2010. Really now.

  8. Dictatortot says

    A fine analysis. However, one of my worries about Trump's judicial appointees has been that he might well pick them based on their loyalty and deference to him, and on no other criterion. They might not necessarily be judges or lawyers of any description … or, indeed, even vaguely conversant with the law or how it works. Now, even that's unlikely to result in a SCOTUS majority ruling that undermines Sullivan, for any number of reasons. But I do wonder if we're relying on too many once-safe assumptions about how the country functions.

  9. Mike T. says

    @SJE

    I hope that the left gets a new appreciation for the First Amendment.

    More importantly, the policing of speech is part of what lead to Trump. People could not express certain opinions or views without being labeled as hateful or motivated by bias, which left unsaid various anxieties.

    Yeah, you're not going to get far here with "your criticism abridges my freedom of speech."

  10. Malakyp says

    @MakingAmericaGreatAgain

    Your firm grasp of legal scholarship (and American history in general) is duly noted.

    @DorothyM

    If possible, it would have to be really carefully written. The underlying act is almost certainly illegal (as animal cruelty, at the least). Filming such videos is, arguably, conspiracy to commit animal cruelty. Interstate commerce in crush films is currently banned under the Animal Crush Video Prohibition Act of 2010, which I'd rate as reasonably likely to survive judicial review. The proceeds from selling them could probably be tolled.

    But viewing such a video? Almost certainly legal under any likely standard. For better or worse, I don't see any way that a crush video would satisfy the Miller test for obscenity, and other free-speech restrictions are on even shakier ground. And even then you'd have to contend with Stanley v. Georgia.

    But this has wandered off topic, I fear. If we have to directly confront United Stats v. Stevens regarding the actions of the Trump administration, then we have far more serious problems already.

  11. says

    Sadly, Trump's stance makes a Federal Anti-SLAPP law unlikely any time soon. While defamation laws certainly have a place and there are times a defamation suit is appropriate, they can be used to silence criticisms with their sheer expense. Proper anti-SLAPP laws help prevent the abusive uses of defamation suits.

  12. Chuck says

    Part of me wonders if Trump will find some random state intermediate appellate court judge who successfully campaigned for reelection this year on the basis of being all aboard the Trump train.

  13. En Passant says

    SJE says November 14, 2016 at 11:05 am:


    I hope that the left gets a new appreciation for the First Amendment.

    After pushing for "hate speech" designations and "safe zones", the left now finds itself on the other side with an incoming government now trying to punish its speech.

    I know that various factions have advocated "hate speech" bans and "safe zones". But I haven't seen any elected official, and especially any legislator, try impose such bans.

    Key words: "elected official". I think various appointed officials, such as college administrators, or student organizations under their control, have attempted to mandate such bans.

    Such bans are reprehensible. But are there significant or widespread examples of elected officials enacting, or attempting to enact, "hate speech" bans, at least since National Socialist Party of America v. Village of Skokie in 1977?

    Yeah, I'm too lazy to search out examples.

  14. Friendly Neighborhood Zionist Boogeyman says

    8@MakingAmericaGreatAgain, the reason we don't have those is in large part because they're unconstitutional.

    @tehy
    As is often the case, here the harder and slower solution is the better one. Better to take up a burden yourself than to lay a heavy yoke across us all.

    @Mod(s) if my name offends, sorry, I can use another. I know I've used another (others?) in the past but I have severe CRS (and at a young age, alas).

  15. Marven N. says

    What intrigued me most about his call for "opening up libel laws" is that if done, he and his staunchest supporters like Breitbart would be prime defendants for all the conspiracy theories that they've peddled over the last eight years.

  16. Malakyp says

    @En Passant

    R.A.V. v. City of St. Paul (1992) is the most recent precedent I can think of that directly applies to laws enacted by elected officials (here, St. Paul's Bias-Motivated Crime Ordinance). Snyder v. Phelps (2011) restricts tort action based on speech, so is a couple of steps further removed, but demonstrates the Court's willingness to put the bar high on hate-speech-style First Amendment restrictions.

    The Supreme Court has, to my knowledge, never examined the threat that ponies pose to the First Amendment. I presume that the Justices, like all right-minded Americans, are afraid of the consequences of rousing the ponies to anger.

  17. Allen says

    I'll take a note from Mark Twain's comment on speech. Let them speak I want to know who I'm dealing with, it might save me a lot of time later.

    Jiminy Cricket, there's an idea. Let's let Leviathan help make the decision on truthfulness. That's just too funny to even be afraid of.

  18. MakingAmericaGreatAgain says

    @Friendly Neighborhood Zionist Boogeyman:

    We don't have sedition laws because the liberal activist Warren Court made a decision about what is Constitutional.

    There's no reason why Trump couldn't select Justices who understand that "disloyal, profane, scurrilous, or abusive language" about the government hurt the entire country and don't deserve overbroad First Amendment protections. Obviously, we can't JUST reinstate the 1918 Sedition Act, since Congress won't declare real war any more. But something that lasts while we combat terrorism would be FINE.

  19. OldCurmudgeon says

    IDK. 'Open up' could refer to things other than a direct attack on NYT v. Sullivan. For example, statutory damages to anyone who satisfies the NYT standard. Plus non-discretionary attorney fees. Plus perhaps even something like a presumption against any news organization who refuses to name all sources…so they can be properly deposed.

  20. Malakyp says

    I don't think we have to wait for Ken or Marc to break the news that nobody is going to overturn Brandenburg. I'd be amazed if there's anyone in the judiciary who would spring for that (maybe in East Texas; nothing there surprises me), much less anyone who'd get confirmed to SCOTUS.

  21. Marco Revis says

    > I think it's clear that media has gained too much power and has become too dishonest.

    Honest or dishonest, that's a separate question. But "Too much power"? When every major newspaper, including several conservative ones AND several papers that never or rarely endorsed candidates, endorsed a candidate who lost the election, I think it's a mistake to say that they hold "Too much power."

  22. says

    Let's set up a Kickstarter to fund the mother of all lawsuits against Trump under these new laws – if running around the country for eight years claiming the elected President wasn't born in the USA without a scrap of evidence isn't libel, what the hell is?

  23. Jackson says

    @Ken

    Is there anything stopping Trump + Republican Congress + Republican Senate from creating some sort of federal-level defamation statute? It is state law currently, but what says it must stay that way? Ignoring the issue of "do they have an appetite for this", which is a different question.

    @Mike T

    I think, if you follow the work of FIRE as one example, it's not so much "your criticism abridges my freedom of speech" that is the problem as "your literally not allowing me to speak and/or responding with disproportionate government-sanctioned force to the content of my speech abridges my freedom of speech" that provoked a lot of this outrage and retaliation.

  24. MakingAmericaGreatAgain says

    Look, making a new sedition law is not fucking hard. I can name court cases, too. Holder v. Humanitarian Law Project.

    National security matters more than the Left's feels edition of the First Amendment. Anything that assists a terrorist organization is prohibited speech, even if it doesn't directly contribute to terrorism, because it gives the terrorists more time to do terrorist shit. That's not my opinion, that's the 6-3 ruling.

    It isn't a huge leap to realize that all these "Never My President" fifth columnists are aiding terrorism in their efforts to undermine America. We should stop letting them hide behind the First Amendment. Free speech doesn't mean you can just say fucking ANYTHING without consequences.

  25. Eristone says

    @Making AmericaGreatAgain

    Making (or extending) law that matches your prohibited speech argument would prove to be very detrimental and effectively kill the 1st amendment. In addition, I would submit to you "Think how this law could be used in the hands of your worst enemy".

  26. says

    @MakingAmericaGreatAgain

    Look, making a new sedition law is not fucking hard.

    Have you ever actually watched the US government try to do anything?

    I can name court cases, too.

    The trick is to invoke them meaningfully.

    Holder v. Humanitarian Law Project. National security matters more than the Left's feels edition of the First Amendment. Anything that assists a terrorist organization is prohibited speech, even if it doesn't directly contribute to terrorism, because it gives the terrorists more time to do terrorist shit. That's not my opinion, that's the 6-3 ruling.

    I haven't seen much in the way of Holder challenges to speech. And there certainly could have been. I wonder if there's a lesson here about free speech exemptions being problematic because of selective enforcement. Naaaaah, probably not. Anyway, that's mode of an aside because. . .

    It isn't a huge leap to realize that all these "Never My President" fifth columnists are aiding terrorism in their efforts to undermine America. We should stop letting them hide behind the First Amendment.

    Well, that's the problem with just naming court cases. You have made one of the great classic blunders, after "Never fight a land war in Asia" and "Never face a Sicilian when death is on the line". Your so called "friends of terrorism" are going to wind up winning Godzilla-level free speech victories in court if you want to enforce Holder like this. I say more power, this will be entertaining as shit to watch.

    Free speech doesn't mean you can just say fucking ANYTHING without consequences.

    Oh? Perhaps you would like to go into what things are not protected by Free Speech and what the consequences of those things are. I'm sure everyone will find this interesting.

  27. AH says

    @grandy

    You forgot to mention he would ALSO have to go after all the ones who said "not my president" for Obama.

    There may not have been the riots when Obama was elected, but there was "not my president" comments from a few (but nowhere near all).

  28. Matthew Cline says

    @MakingAmericaGreatAgain:

    There's no reason why Trump couldn't select Justices who understand that "disloyal, profane, scurrilous, or abusive language" about the government hurt the entire country and don't deserve overbroad First Amendment protections.

    And what happens when the pendulum swings the other way and liberals come back into power?

    EDIT: Also, can you give some concrete examples of types of speech that would be illegal under such a sedition law? I assume that merely saying "not my president" wouldn't be sufficient to be illegal.

  29. Tom Scharf says

    If anyone thinks the press has too much power, they were just proven wrong last week.

    Print / weekly media endorsements were running 27:1 for Clinton. Almost every major newspaper endorsed Clinton. For media outlets that allow reporters to give donations it was extremely lopsided. This isn't an aberration. In Florida almost every newspaper endorsed Gov Scott's opponent (twice) and he is hardly the anti-Christ.

    By many measures there is the * appearance * of media bias. Can the media overcome internal group think and still report fairly? Maybe, but it's easy to doubt that based on the Obama 2008 and Trump 2016 election cycles.

    We want a free press, we also want a fair press. It is very easy to defend the rights of a fair or even a mostly fair press. The media's gate keeping function essentially failed this cycle as most saw them taking sides under the guise of some self determined moral obligation to save the Republic. A monumental own goal on their part.

    I'm still more than happy to defend the rights of the press, but it would be nice to see them try a little harder to be a fair press.

  30. Aaron says

    At risk of feeding a troll:

    @MakingAmericaGreatAgain
    It isn't a huge leap to realize that all these "Never My President" fifth columnists are aiding terrorism in their efforts to undermine America. We should stop letting them hide behind the First Amendment.

    Thanks for providing such a concrete example of a slippery slope. I can't wait for the explanation how "never my president" fifth columnists are either not the press, whose freedom Congress shall make no laws abridging, or not using their first amendment right "to petition the government for a redress of grievances."

    Sorry for being so tacky, @Grandy. :P

  31. King Squirrel says

    If I was Trump and wanted to mess with the 1st amendment, I think I would go to my strengths – populist fervor and emotional manipulation. Changing the laws directly sounds difficult and boring, so I'd go with something easy and exciting that could be fueled by a fear mongering/smug mockery feedback loop.

    Like starting a new House Un-American Activities Committee.

  32. says

    Hypothetically, Trump could convince Congress to pass a Federal libel statute with an interstate commerce jurisdictional hook. He could then direct the DoJ to prosecute it aggressively. I would have said any form of "libel against the government" seems pretty far-fetched as that's pretty well-settled law, but US v. Alvarez was a split decision with no real rationale.

  33. Sami says

    I still have a problem with the whole protests-at-funerals-are-legal thing.

    I think where these "liberty" arguments come down to, for me, is: whose freedoms are you ignoring, here?

    For example, some people claim bans on smoking are infringing on the "freedoms" of smokers. However, a lack of smoking bans infringes on my freedom to attend events, enter various venues, or open the windows of my own goddamn house because cigarette smoke gives me asthma attacks. I think my freedom to breathe – and others' freedom to breathe air less tainted with noxious pollution – should rate a little more highly than someone else's freedom to indulge.

    With regards to the funeral thing – why is there no protection for people holding what is often an important and sacred religious event to do so undisturbed? Would equal protections apply if a group started regularly holding protests at church services or weddings? It's not a "protest", it's just a public nuisance.

    If it were a protest, they'd be protesting somewhere actually relevant to their cause. If their complaint is about laws, they should protest at the venues where laws are made. If it's court decisions, at courthouses.

    Protesting at unrelated funerals is just being a disruptive, hurtful asshole because that's what you want to be. and that shouldn't be protected.

  34. En Passant says

    Malakyp says November 14, 2016 at 1:29 pm:

    The Supreme Court has, to my knowledge, never examined the threat that ponies pose to the First Amendment. I presume that the Justices, like all right-minded Americans, are afraid of the consequences of rousing the ponies to anger.

    From my experience with ponies, I think their rage and hostility to the First Amendment does make them unsuitable for political or religious office. Although horses, or at least their southernmost ends when facing north, have held both such offices in ample numbers.

    There may be a scientific, rather than a political, reason for that. Until the science is settled, I expect that the Supreme Court will continue to avoid the pony question. But when they do examine it, watch out!

  35. tehy says

    @Brian Z

    "If it's clear the media have too much power, how much power can we agree they ought to have? How dishonest can we agree they ought to be?"

    It seems like you're trying out the Socratic method for the first time. Next time, I'd learn how to understand other's arguments before I made my own…

    Anyways, we can't. But we can agree that they should be *less*, which was the basis of my argument; namely, that most people understand that there is a problem, and also that there are no good solutions, and lastly that Trump picked one of the worst.

    "How can I tell the difference between an honest candidate complaining about dishonest media and a dishonest candidate complaining about honest media?"

    In specific cases, the truth can be demonstrated. I don't think my argument rests on there being an axiomatic way to determine honesty and dishonesty on a non case-by-case basis. I'd be very surprised if I was wrong on this point.

    "If it's a real problem, whose problem is it? Do people have some recourse? Can they decide for themselves which media sources to trust or not to trust?"

    Rather in the same way that taxation for special interests benefits a select few and hurts everyone in sneaky ways, a dishonest media hurts a select few and…also hurts everyone in sneaky ways. People have recourse, but they don't necessarily know they do. It's not easy for people to simply dismiss liars in this fashion, unfortunately. Why do you think Communist states bothered with state propaganda all the time?

    "Is it a good idea to change our laws so that elected and appointed judges decide who controls the messages of the media?"

    Did I say so?

    see, that's the socratic method in action

    "When someone proposes to so radically alter our society's laws and values, I don't give a shit about that person's motives. Bad idea is bad idea."

    You know, I rather thought when I was making this comment, I was discussing it with the maker of the post I was commenting on, who wrote

    "The statement remains concerning, though, because it displays a contempt towards First Amendment values and freedom of the press."

    Little did I know, I was actually talking to you, internet rando from the backwoods of Nowhereville. Well, you're entitled to your opinion, irrelevant to the discussion as it may be.

  36. Chris says

    Maybe Trump wants to know the obscure reasoning as to why Gov. Ventura's victory against Kyle was vacated.

  37. Noah Callaway says

    @tehy

    Little did I know, I was actually talking to you, internet rando from the backwoods of Nowhereville. Well, you're entitled to your opinion, irrelevant to the discussion as it may be.

    This is such a preposterous rhetorical attempt to belittle someone. You write a significant post engaging in discussion with them, and then you claim they're irrelevant to the discussion?

    I give you a 1/10 for effort; with rice 9/10.

  38. Suthenboy says

    Trump – "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."

    He specifies that the statements are false and implies malice with 'negative and horrible'. What he said falls squarely under the law as it currently exists, so no, he doesnt need to open up our libel laws. It is campaign rhetoric aimed at gaining sympathy from voters who are tired of the disingenuous, partisan media.

    " There are two impediments to Trump and his sympathizers being able to sue whomever they want for "hit pieces" or "negative" and "horrible" statements."

    That isnt what he said he wants to do.

    "It carelessly conflates false statements and negative coverage. "

    No, it does not. He specified false.

    Contrast Trump's statement with the rhetoric from the Hillary campaign stating that they were going to 'crush' media outlets that 'have no right to exist'. That is easily the scariest, most anti-first amendment rhetoric I have heard from any candidate in my lifetime. I haven't heard much bitching about that. Did I miss it?

  39. Brian B says

    I have never read a compelling reason for Sullivan's distinction between defamation standards for public and private figures.
    The specious claim that without it a state could pass a law proscribing
    hurting someone's feelings is absurd and uncharacteristic of the usually sound reasoning here.
    Defamation of a private figure still requires a statement to be false, it simply lacks the hurdle of essentially requiring the defendant to admit that they knew it was false and published it anyway simply to harm the plaintiff.
    Rather than reinforcing a free press this standard has encouraged an irresponsible and destructive lack of journalistic standards that has contributed to the low esteem in which the press is held
    For those who support Sullivan as what stands between us and a cowed and sycophantic press is there some evidence the press didn't or couldn't do its job prior to 1964 or that we lived in some tyranny lacking free expression?
    I see none and in fact see the opposite. Sullivan may not deserve all the blame but it deserves some.
    No one no matter their political persuasion should have to give up the legal remedy for being lied about.

  40. S B says

    @Suthenboy,
    Ah, the joy of the english language. Does "purposely negative and horrible and false articles" actually mean "purposely negative" articles and "horrible" articles and "false articles", or is it restricted to purposely (negative&horrible&false) articles? When Trump is complaining about articles that paint him in a bad light but are in fact stating the truth about his past actions or statements, I wouldn't trust him to be using the second form.

    SB

  41. says

    @BrianB:

    The specious claim that without it a state could pass a law proscribing
    hurting someone's feelings is absurd and uncharacteristic of the usually sound reasoning here.

    That's because you're misreading, willfully or not, the footnote. First, I said that scenario was possible if we accepted the theory that private lawsuits don't involve state action. Second, I said a law permitting a private lawsuit.

  42. Anikat says

    Could misquoting someone count as libel, if the misquote made it appear as though someone said something terrible (ex: targeting a particular group) and the original/real quote was easily verifiable (ex: videotaped interview or radio show)?

    To clarify, I get that there would probably be a grey area where it wouldn't be clear if the hypothetical newspaper had just made a mistake, but let's say for this example that the misquote:
    – is not even close to the person's original meaning
    – makes it seem like the speaker is an awful person
    – could significantly influence the public's opinion of that person

  43. Brian B says

    Ken White;
    How does your reasoning not lead to a proscription of any private limitations on speech?
    If the involvement of a state court or law to settle the matter amounts to the state limiting speech then any private dispute over speech becomes censorship, no?
    How could an employer discipline or fire an employee over offensive speech if the moment the employee filed suit it became a case of government censorship?

    And as an aside that is not my argument in any event. Sullivan is wrongly decided because no compelling 1st amendment basis exists for setting a higher bar for public v private figures, especially in light of subsequent decisions defining someone as a public figure even if they have become one through no efforts of their own, like running for president.
    There's no epidemic of defamation suits among private individuals. Sullivan is especially archaic in the age of anti SLAPP laws.

  44. says

    @BrianB:

    How does your reasoning not lead to a proscription of any private limitations on speech?
    If the involvement of a state court or law to settle the matter amounts to the state limiting speech then any private dispute over speech becomes censorship, no?
    How could an employer discipline or fire an employee over offensive speech if the moment the employee filed suit it became a case of government censorship?

    You're mistaking "the First Amendment applies" for "the First Amendment prohibits." If the First Amendment applies, that doesn't automatically invalidate the statute/lawsuit/etc., it just means that they must pass First Amendment tests (like actual malice) and First Amendment scrutiny. Similarly, saying the Fifth Amendment and Miranda applies to state cops does not mean no confession can ever be used; it means that state use of confessions is limited by the Fifth Amendment and Miranda.

    There's no epidemic of defamation suits among private individuals. Sullivan is especially archaic in the age of anti SLAPP laws.

    I disagree. First, many states don't have anti-SLAPP laws. Second, many states have bad, inadequate anti-SLAPP laws. Third, an anti-SLAPP law is useless if you gut the substantive law behind it as you propose — an anti-SLAPP law only provides a mechanism to apply substantive First Amendment principles early in the case, it doesn't create new substantive protection. Fourth, both defamation suits and especially defamation threats are a major problem, if not an "epidemic."

  45. SJE says

    @En Passant "I know that various factions have advocated "hate speech" bans and "safe zones". But I haven't seen any elected official, and especially any legislator, try impose such bans."

    I am aware of legislators who have discussed it, but cannot find right now. In any event, the legislation follows the culture, not the other way around. So look at the Universityies (including State institutions) with various speech codes. Many looked to Title IX as a basis for requiring such speech codes.

  46. Brian Z says

    @tehy

    Little did I know, I was actually talking to you, internet rando from the backwoods of Nowhereville. Well, you're entitled to your opinion, irrelevant to the discussion as it may be.

    Sorry not sorry.

    My fundamental reaction was a rejection of your bald assertion that the media should have less power. A strong and vibrant media is an essential ingredient for the success of the Republic, so I absolutely would not move to curtail their influence. Yes, I inelegantly responded to your post with a shotgun blast of questions (some would say JAQing off), so I apologize only for not being clear.

    Though Trump is willing to abridge the 1st Amendment, he has an allegedly good reason, so you think it's maybe not so bad after all. Nonsense.

  47. Anon Y. Mous says

    It carelessly conflates false statements and negative coverage.

    The one doing the conflating is you. Trump discusses "when they write purposely negative and horrible and false articles", but you act like he said "when they write purposely negative or horrible or false articles". He is not talking about someone who merely gets the facts wrong, he is talking about someone who publishes something that is false in a horribly negative way. Big difference.

    Anyone who reads his statement without an attitude of disdain and contempt, would see that Trump was using the negative and horrible descriptors in an inartful way to mean bad intent.

    Intent.

  48. Encinal says

    Is mental illness a defense to defamation claims? If you really believe something is true, but you don't have a reasonable basis, is it defamation?

  49. Dudefella says

    Anon Y Mous:

    Realize that when the discussion boils down to whether Trump is (1) suggesting that we trammel the First Amendment; or (2) ignorant of what the law already prohibits; but we can't really tell because he's profoundly inarticulate…

    well, that's not a great look.

  50. tehy says

    Sorry not sorry.

    You don't have to be "sorry", but you're acting like I was talking to people in general when really I was addressing a very specific point.

    My fundamental reaction was a rejection of your bald assertion that the media should have less power. A strong and vibrant media is an essential ingredient for the success of the Republic, so I absolutely would not move to curtail their influence. Yes, I inelegantly responded to your post with a shotgun blast of questions (some would say JAQing off), so I apologize only for not being clear.

    And our media is neither strong nor vibrant. Fox, MSNBC, CNN…these are cancers on our society. I can't agree on what should be done about it, but to pretend that media bias isn't a deeply damaging problem is foolish. (perhaps I should say they're strong in a brute force sense, but not strong in a robust sense)

    Though Trump is willing to abridge the 1st Amendment, he has an allegedly good reason, so you think it's maybe not so bad after all. Nonsense.

    imagine for a moment that you heard that Trump once suggested cutting off someone's legs

    sounds horrific, right?

    then you hear that he was doing rescue work on an earthquake site and encountered a man whose legs had been cut off from circulation for several days, and recommended cutting them off

    as this is a recognized medical solution to a problem (i'm far from an expert, but from what I have heard the blood "goes bad" and will poison the rest of the body) the Trumpenator now sounds like a much more reasonable person – maybe one willing to jump into bad solutions, maybe stupid or impulsive, and maybe by proxy insensitive to pain, but not a monster either

    the point I was trying to make; demonstrated.

  51. Matthew Cline says

    @Ken:

    Then what's he opening up? Purposely false is already actual malice, as described above.

    Trump could want to lower the burden of proof needed to demonstrate actual malice, or even reverse the burden and make the defendant prove there was no actual malice involved.

  52. Sinij says

    In my opinion, once you enter public light as a politician, you should lose ability to sue for label. Even if someone maliciously does so. In exchange, as a politician, you gain ability to lie without consequences and to receive legal bribes as campaign donations.

    Now, as a private citizen, there should be a better protection against 'weaponized speech'. It is one thing to criticize someone, it is entirely different to, for example, organize to get someone fired for their political opinions.

  53. Sinij says

    " I can't agree on what should be done about it"

    Strong, publicly funded broadcasters like BBC, CBC and so on worked well for other countries.

  54. Matthew Cline says

    @Shinji:

    Now, as a private citizen, there should be a better protection against 'weaponized speech'. It is one thing to criticize someone, it is entirely different to, for example, organize to get someone fired for their political opinions.

    How would you imagine a law against such things being worded? Would it be narrow, requiring for the defendant to explicitly call for someone to be fired? Would it be broad, where sufficiently contributing to or enabling the public outrage over someone's expression would be enough? Somewhere in between?

  55. Suthenboy says

    @ S B

    Trump doesnt appear to be a panda bear. Given his appetite for word salads I could be wrong.

  56. Encinal says

    Sinij says

    In exchange, as a politician, you gain ability to lie without consequences and to receive legal bribes as campaign donations.

    Campaign contributions are not legal bribes.

  57. En Passant says

    Sinij says November 15, 2016 at 7:54 pm:

    Strong, publicly funded broadcasters like BBC, CBC and so on worked well for other countries.

    In the USA, the 20 FM broadcast channels south of 91.9 MHz are reserved for non-commercial, or what you might call "publicly funded" broadcasters. The broadcasters are all non-profit. The broadcast licenses are owned by various non-commercial organizations, typically Internal Revenue Code Section 501[c](3) charitable educational organizations, colleges, high schools or churches.

    They are funded various ways, by subscribers, by non-commercial organizations, by churches, by charitable grants from commercial entities, etc. Some few receive government support by government grants. These are typically in areas where there are very few broadcasters at all. A few non-commercial broadcasters also have frequency allocations above 91.9 MHz, for historical reasons.

    Various television channels are also allocated for non-commercial broadcasters, usually 2 or 3 in every metropolitan area. Noncommercial TV broadcasters are funded in much the same way as noncommercial FM broadcasters.

    USA noncommercial broadcasters do not represent a single monolithic entity or point of view.

    Contrast Britain, where every TV and radio receiver is taxed annually to pay for the BBC.

  58. Manta says

    Can you please give some sources for your claims? I'd be interested in them

    Tom Scharf says NOVEMBER 14, 2016 AT 7:46 PM
    "Print / weekly media endorsements were running 27:1 for Clinton. Almost every major newspaper endorsed Clinton. For media outlets that allow reporters to give donations it was extremely lopsided."

  59. Cactus says

    If they do try something at least we can help Shirley Sherrod get Breitbart shut down.

    Which is the usual problem with these vengeful ideas in politics, they always end up being used against the people who made them.

  60. IForgetMyName says

    @ Mike T, SJE

    I hope that the left gets a new appreciation for the First Amendment.

    More importantly, the policing of speech is part of what lead to Trump. People could not express certain opinions or views without being labeled as hateful or motivated by bias, which left unsaid various anxieties.

    Yeah, you're not going to get far here with "your criticism abridges my freedom of speech."

    The extent to which there is popular support for hate speech and safe space laws demonstrates the degree to which certain people on the left have not subjected their own views on free speech to a particularly critical analysis.

    The extent to which there is popular agreement with SJE's conflation of criticism with censorious hate speech and safe space laws (and popular support for similar hate speech and safe space laws to protect conservative and religious opinions) demonstrate the degree to which certain people on the right have not subjected their own views on free speech to a particular critical analysis.

    Personally, I feel both sides could benefit by a more analytical approach to free speech. Would you refuse to live under the laws you propose if they were applied to views you endorse? Can your proposed law be applied to all speech consistently and create a system that doesn't by its very nature contradict itself? In order to make your system work, does it require somebody or something–whether it's an elected official, a judge, or some popular referendum–to separate speech into categories based solely on the content of that speech?

    If you answered "Yes" to one or more of these questions, then I'm sorry to tell you that you don't believe in free speech.

    The loosening liberal standards on "what is racism" is troubling (as is the loosening conservative standards on "what is reverse-racism"… but it's also self-correcting, for the most part. When people call Obama a racist, 99% of the time there's a very clearly implied "because of what he said about Trayvon Martin," or "because he gets involved in too many state shootings involving black people," if not a very explicitly stated "because he goes to Wright's church," or "because he is a secret Muslim doing a terrorist fist bump." Because the reasoning and any allegedly supporting facts are self-evident, people are free to judge the assertion on its merits–which is exactly how the marketplace of ideas work. You can (and many of you do) call bullshit when someone calls you a bigot for opposing gay marriage. Other people can (and do) decide that they don't particularly care for your position, regardless of whether or not that makes you a bigot. That's the way it works–that's the way it's supposed to work.

    Mr. Trump should also be wary–a great deal of what he's said, and what got him into office, would likely fall under any law loose enough to cover the specific speech he's targeting. Given what others have described as Trumps "bumbling attempts to communicate well-meaning ideas" thanks to his "poor communication skills," I'd be very surprised if Mr. Trump never accidentally misspoke and made a false factual assertion.

    Mr. Trump and others are understandably concerned about outright lies, and assertions that imply they are supported by outright lies, but the thing is our laws already take care of those. If someone says "Obama is a racist because I saw him lock a bunch of people inside a white church and set it on fire," and that statement is proven false, our current libel laws apply. If you say, "I won't tell you what I saw, but after going to school with Obama, I can definitively tell you the man's a racist," there's a good chance our current defamation laws cover that as well.

    One area in which I–tenuously–support Mr. Trump is the offhand reference to money. If, under the current standards of liability, or even narrower standards, someone is found liable for defamation, I would be quite okay with a stronger remedy than nominal damages and a judicial finding that your critic is a liar. This might benefit the little guy more than the Trumps of the world, since the Trumps would be much more capable of proving actual damages due to reputation loss.

  61. IForgetMyName says

    @Shinji & Matthew Kline

    Now, as a private citizen, there should be a better protection against 'weaponized speech'. It is one thing to criticize someone, it is entirely different to, for example, organize to get someone fired for their political opinions.

    How would you imagine a law against such things being worded? Would it be narrow, requiring for the defendant to explicitly call for someone to be fired? Would it be broad, where sufficiently contributing to or enabling the public outrage over someone's expression would be enough? Somewhere in between?

    I'm curious about this myself. If you believe some of the Trump supporters, merely alleging that someone supports Trump is enough to get you fired in more liberal areas. Even if you don't accept that assertion, I know enough people who have lost offers or gotten fired due to their bosses finding out about embarrassing and reckless things they've said and done–often completely apolitical in nature.

    When facebook first came out, I was working with people who hired heavily from the Ivies. As I understand, before facebook opened up to the masses, the default privacy settings gave full access to anyone at your school. Many people withdrew offers because they had alumni from Harvard or Yale, and their new hires didn't entirely realize that their new employers could see everything they posted on what would soon be called social media.

    It would be hard, it not impossible, to create a law against "weaponized speech" that doesn't essentially end up being Europe's "Right to be Forgotten" laws, because by its very nature the phenomenon you're talking about mostly involve things that people proudly broadcast to a certain audience being rebroadcast to a less receptive audience.

    The only alternative I can see having any effect is for everyone to conscientiously assert copyright over everything they say and to restrict reposting… and even that would require seriously gutting fair use criticism… and even then, people can still paraphrase you when they out you as supporting NAMBLA.

  62. tehy says

    @sinji

    No they didn't. The BBC is dog, the CBC isn't much better though I haven't heard much about it. NPR is similarly dog and I canceled my subscription because of this. At present, one side of the political spectrum has taken over media to an unprecedented degree; simple campaign donations bear this out.

    Meanwhile, to the other argument: the problem of false claims of racism is certainly self-correcting, but only in the sense that we see it now: the word "racism" loses its strength, such that someone who is racist is not impacted by a true claim of racism – can you say Donald J. Trump? (Even if you argue "America was never great", other GOP politicians knew they could only dog whistle and no further.) And so it goes. If you're fine with that self-correcting solution, then good for you. Personally, I don't actually think Trump is particularly racist, nor do I think it'd be a big deal if he was, so I'm great with it too. But if you're not, well…too late, you should've reined in your own political wing, you reap what they sowed.

  63. Eric says

    @tehy,

    … the CBC isn't much better though I haven't heard much about it.

    Then how can you know if it is dog (or cat, presumably) ?

  64. Noah Callaway says

    @tehy

    the CBC isn't much better though I haven't heard much about it.

    How to tell someone isn't thinking critically.

    Edit:

    @Eric

    Haha, sorry, I didn't see you posted essentially the same thing. I didn't mean to steal your critique.

  65. OrderoftheQuaff says

    I would have gone the other way in the crush video case. If an exception can by carved out by fiat for child porn, it can be extended to kittens and puppies. I'm aware of the City of Hialeah/Aye Babalu Lukumi case (Santerian priests have the Constitutional right to put small animals to the knife in furtherance of their faith), but they thankfully don't sell videos of these rituals. In an interesting recent case out of Ken's home court, the Central District of California, an animal rights group got a restraining order against a Jewish congregation enjoining it from doing ritual chicken slaughter on Yom Kippur. The order was subsequently dissolved, but not before it had interfered with the holiday. I believe that the order was issued in error, having brought many a game bird all the way from squawk to plate with my own sharp knife.

    The species makes a difference (some of my closest friends are cats and dogs) and also, are you going to eat it?

  66. Tehy says

    how to tell someone isn't thinking critically

    If someone hasn't seen much, but it's all bad? I'm willing to admit that I don't know that much about the CBS specifically, but as I recall it's not much good either.

  67. BadRoad says

    @OrderoftheQuaff

    I would have gone the other way in the crush video case. If an exception can by carved out by fiat for child porn, it can be extended to kittens and puppies. I'm aware of the City of Hialeah/Aye Babalu Lukumi case (Santerian priests have the Constitutional right to put small animals to the knife in furtherance of their faith), but they thankfully don't sell videos of these rituals. In an interesting recent case out of Ken's home court, the Central District of California, an animal rights group got a restraining order against a Jewish congregation enjoining it from doing ritual chicken slaughter on Yom Kippur. The order was subsequently dissolved, but not before it had interfered with the holiday. I believe that the order was issued in error, having brought many a game bird all the way from squawk to plate with my own sharp knife.

    The species makes a difference (some of my closest friends are cats and dogs) and also, are you going to eat it?

    For me, the material difference is how humane the method of slaughter is. A quick slash to the throat is very different from gradually crushing the animal to death. In this case, of course, the crime is animal cruelty; filming it for entertainment is a crime against cinema but probably shouldn't be punishable.

    I'm not sure the species matters so much. There are people with pet pigs, goats, rabbits, ducks, and chickens, all of which are delicious. Meanwhile, there are enough people who eat dogs, cats, and guinea pigs that laws against the practice have been overturned.

  68. says

    To all the arrogant legal experts who can win a debate against the devil, all Trump has to do is sign legislation from the Republican controlled Congress and "puff," all your legal sleaze goes up in smoke. If the legislation can save one innocent person from being slimed by the press, it would be worth it.

  69. Friendly Neighborhood Zionist Boogeyman says

    @OrderoftheQuaff
    Factual correction: The thing with the chickens is pre-Yom Kippur, not on Yom Kippur. Animal slaughter is forbidden on the Sabbath and Holidays unless it's part of a sacrifice in the Temple, which we haven't had for the last 1,946 years.

    @tehy
    What does "dog" mean in this context? NPR is actually pretty non-biased in my experience, except when it comes to Israel, which is why I don't support them financially (see my name here).

  70. Matthew Cline says

    @beijingyank:

    To all the arrogant legal experts who can win a debate against the devil, all Trump has to do is sign legislation from the Republican controlled Congress and "puff," all your legal sleaze goes up in smoke. If the legislation can save one innocent person from being slimed by the press, it would be worth it.

    And you think there would be collateral damage from such a law? No defendants who'd be sued under such a law and wind winning, but be ruined by the legal costs?

  71. Matthew Cline says

    @beijingyank:

    Also, part of Ken's point is that judge's would likely find such a law unconstitutional. Even if Trump's SC appointment would side with Trump, the other justices probably wouldn't, and he wouldn't get a majority in favor of the law.

  72. Richard says

    The Masson case was tried in 1993, and the jury found for him on liability but could not decide on damages. When it was retried, the jury found in favor of the reporter as she lacked the requisite malice.

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