At a rally in Fort Worth, Texas, in February, Donald Trump announced that if elected he would make it easier to sue for libel in the U.S. “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 said.
During his campaign Trump threatened to sue The New York Times over an article alleging he sexually harassed two women. [Trump denied the allegations to the Times.] Even before he ran for president, Trump threatened to sue news outlets and others–even if he rarely followed through with the threat–an analysis by USA Today of about 4,000 lawsuits filed by and against Trump and his companies found. CPJ is aware of at least one case in which he brought a suit against a journalist: a case filed in 2006 against Timothy O’Brien, the author of Trump Nation, which Trump lost on appeal.
Trump’s campaign proposal to open up libel laws came at a time of unease for the press. A survey of editors at leading news organizations by The Knight Foundation and other press freedom groups in April found that just over half of the 66 respondents said news organizations were no longer prepared to go to court to preserve First Amendment freedoms.
To gauge the potential impact Trump’s proposal to open up libel laws and to examine other threats journalists could face from civil suits, The Committee to Protect Journalists (CPJ) spoke with Floyd Abrams, the First Amendment attorney who represented The New York Times in the Pentagon Papers case.
[The interview has been edited for length and clarity.]
What should the press make of Trump’s campaign proposal to open up libel laws? Is it possible for a U.S. President to enact that through legislation or other means?
The first thing that President-elect Trump doesn’t seem to know is that there is no federal libel law. We have 50 state laws and, if he has a problem with what those laws say, he’d have to deal with it on the state level. More broadly, though, what he really seems to object to is the First Amendment case law beginning with New York Times v. Sullivan, 1964, which makes it much harder for a public official to recover in a libel suit.
Not only does speech have to be false, not only does it have to be defamatory, but it has to be uttered with actual malice, meaning knowledge of falsity or a high degree of awareness of probable falsity. That’s not legislative, that’s constitutional law, so unless his appointees to the Supreme Court reverse this bedrock First Amendment ruling, there’s nothing within his power to loosen the libel laws, change the libel laws, or make it easier for him or others to recover.
And New York v. Sullivan was a 9-0 decision, correct?
Yes, with a number of opinions, but it was 9 to 0. Some opinions would have gone farther than the majority opinion.
Media outlets have been sued over privacy and a lawyer for Trump threatened to take legal action against The New York Times over tax returns that were leaked during the election campaign. Are there other areas where the press is more vulnerable in terms of constitutional safeguards?
I don’t think there are other outstanding legal decisions that would allow him to accomplish what he wants. Breaking and entering to get the tax returns is a crime, and I don’t think there’s any viable First Amendment defense to that criminal conduct. If someone gave the tax returns to the Times and there was some [suit] based on privacy or the like, it would be a really interesting case, but I think he would lose because of the special news worthiness of his own tax situation. That’s more akin to the Bartnicki case [Bartnicki v. Vopper, 2001], where there was a [violation of a] wiretapping statute. The court ruled in favor of the press, as long as it was not implicated in obtaining the tape, a ruling that I think would be repeated.
Would such a ruling be upheld by a more conservative court?
We have a pretty conservative court, and it’s a very First Amendment-sensitive and First Amendment-protective court in good part because of conservative votes on that court. While it’s true we don’t know how new Trump appointees might view the matter, the chief justice is a very strong First Amendment supporter.
If it would be hard for a new administration to change laws or the jurisprudence that protects the press, does that mean we shouldn’t be concerned?
There’s a threat on a number of levels. One is that [Trump is] extremely litigious and, if poorly advised, or if he ignores the advice he receives, he’s capable of bringing a libel suit, as he did against O’Brien who wrote a biography of Trump. Trump said later, after the case was dismissed, [he] made them spend a lot of money. Our press today, indeed, the best of our press today, is not the well-funded press that it used to be and is very concerned about every dollar because it has so few of them. More broadly: For the press to be attacked on a routine basis by the president and for the public to be told that the press is not only disserving them, but trying to mislead them, creates a real risk of the press losing still more of its ability to play the role of an aggressive, serious entity engaged in oversight of how the government works.
You spoke in the Observer on the impact the Gawker decision, in which the outlet went bankrupt after being ordered to pay $140 million damages in a privacy case involving Terry Bollea [Hulk Hogan], could have on press freedom. What are the potential issues for the media in this environment of negativity toward the press, including from advisers to Trump such as Peter Thiel, who funded the case against Gawker?
Two broad issues [were] raised by the Gawker case. I don’t think anyone who has looked at this case doubts that if all Gawker had done [was] to describe in words the sexual contacts of Hulk that it would have been held protected, period. Films may be different. That case raised a serious First Amendment issue, and I think if [Gawker] had been able to survive long enough to handle the appeals on it they probably would have won.
The greater risk to me is the Peter Thiel part of it. And that is the notion of a billionaire outsider, not himself accused of anything in the case, but with vast amounts of money that he’s prepared to spend in an effort to harm or destroy a publication. That’s something new. And at a time when so many of our leading publications are weakened or tottering financially, having really big bucks aimed at them can be a very real threat, and it’s that threat, rather than the question of whether Gawker could have been held liable or would have been held liable in appeals that is greater. There are a lot of individuals in this country with a lot of money and I think that the Peter Thiel success vis-a-vis Gawker could send a very dangerous message.
[Editor’s note: Between July 2008 and January 2013, Peter Thiel and the Thiel Foundation donated $1,075,000 to CPJ. CPJ has not received financial support from Thiel since that time. In a statement released after Thiel’s support for Bollea’s lawsuit was made public, CPJ said that while it supports the right of individuals to seek civil redress, it does not support efforts to abuse the process by seeking to punish or bankrupt particular media outlets.]
Currently, 28 states have anti-SLAPP laws that offer protection from the use of lawsuits seeking to intimidate or harass critics through legal fees. Could a federal or state-level anti-SLAPP law help prevent abusive legal action?
The best we can hope for during a Trump administration and a Republican Congress and Republican overwhelming control of state legislatures is things not getting worse, rather than things getting better. Sometimes there’s a moment when we’re very close as a country to doing something protective in this area. We almost had a federal shield law, but then WikiLeaks began some of its more controversial and offensive behavior so it lost the bill, which had passed unanimously in the Senate judiciary committee. There was a lot of talk of a federal anti-SLAPP (anti-Strategic Lawsuit Against Public Participation) law, which seemed to be gathering support.
As I said earlier, this has been a very pro-First Amendment Court. And I would certainly argue that in a variety of areas, it has been the left that has been very resistant to broad First Amendment positions, in part because some of the issues were right-wing issues, which may be why some of the conservatives on the court have found it easy to adopt First Amendment stances. But under President Trump, I think it’s really more likely the left will rediscover the First Amendment. Now that we’re going to go back to more traditionally rooted claims, it will be interesting to see if the conservatives ever meant it.
Do you think self-censorship will be a problem for the media?
I don’t think so, not yet anyway. I think there may be a level of concern on the part of some newspapers–I think not the greatest ones–that they’re out of touch. I think only two newspapers endorsed Donald Trump. I can’t help but think that there are internal discussions, not so much, “Where did we go wrong?” but, “How can we not have gauged our readers better than we did?”
But we still have the Constitution, we still have the First Amendment. Other countries are still worse than us.
Alexandra Ellerbeck/CPJ Americas Research Associate
[Editor’s Note: The fifth paragraph has been changed to reflect Abrams’ work relating to The New York Times.]