Explainer: ‘Opening Up’ Libel Laws

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By Lyndsey Wajert

President Trump on several occasions expressed his dissatisfaction with American libel laws, saying most recently that “our current libel laws are a sham and a disgrace, and do not represent American values or American fairness.”

During his presidential campaign, Trump stated that, if elected, he would “open up our libel laws.”

His statements pleased those who criticize what the President has dubbed “fake news” organizations but have also irritated First Amendment scholars.

What does Trump mean by “libel laws”?

Libel can occur when a false statement of fact is written or broadcast to another party and damages a person’s reputation. You may be more familiar with the term slander, which is similar to libel, but consists of verbal or gestured statements. A libelous statement, for example, could consist of a social media post saying that your neighbor is a criminal when in fact he or she is not.

The definition changes, however, when the statement is about a public figure, such as a celebrity or politician. In New York Times v. Sullivan, the U.S. Supreme Court determined that the First Amendment requires those public figures to also show that the statement was made with actual malice, meaning the person making the statement knew the statement was false or made the statement with a reckless disregard for the truth.

The Sullivan decision is a landmark First Amendment case because it makes it harder for public figures to sue those speaking negatively about them, providing journalists some breathing room when reporting about government officials.

Who has the power to make libel laws?

Libel laws are mostly determined by individual states within the First Amendment perimeters determined by the U.S. Supreme Court. So, for example, state libel laws can vary but all need to adopt the actual malice test outlined in Sullivan. States must also require proof that the defamatory statement caused injury or harm. The Supreme Court has weighed in on what constitutes “harm” in subsequent cases, but the laws and outcomes can differ by state.

So can the President “open up” laws?

No. While we don’t know what he meant by “opening up,” President Trump cannot directly change libel law. Under the separation of federal powers, the executive branch (which includes the president) does not make law, the legislative branch (Congress) does, and it has left such laws to the states. This isn’t likely to change. But even if Congress were to pass a federal libel law, it would still have to adhere to the constitution as interpreted by our judicial branch — that includes the Sullivan decision, which the court is not likely to overturn.

Is Trump alone in wanting to do this?

Public officials and public figures have a high bar to meet when proving actual malice, so those who are unhappy with their portrayal in the press sometimes want the legal standard to be relaxed. Some plaintiffs have been successful in relying on the concepts of newsworthiness or privacy in bringing suits against the media. Other plaintiffs have looked to countries with less stringent protection for the media, such as the United Kingdom, and have brought their cases in court there.

Given that the President can’t change libel laws, why are people so concerned about his statements?

For a few reasons. President Trump can still affect public opinion. Even though he can’t directly change libel laws, it is possible that the President may rally enough support among voters to make state laws stricter. The calls for “opening up” libel laws reflect the anti-media rhetoric coming out of the White House. The mere threat of litigation against a news outlet could have a chilling effect. And Trump’s statements, along with other actions, could actually spawn more lawsuits against the media which are expensive to defend, even if the accusations of libel are without merit.

Want to learn more?

Media Law Resource Center – Defamation FAQs
Reporters Committee for Freedom of the Press – Advice for Avoiding Libel Suits
“Trump Once Again Threatens to Change Federal Libel Laws That Don’t Exist”

Lyndsey Wajert is a second-year law student at Boston University School of Law. 

Above photo provided by Flickr user Neil R and used with cropping under a CC 2.0 license

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