TRUMP v. THE NEW YORK TIMES

Trump has just fulfilled another promise. On Feb. 26, his presidential campaign sued The New York Times. For years, he has been warning us.

On Feb. 26, 2016, then-presidential candidate Trump said:

“One of the things I’m going to do if I win… 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… writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

On Mar. 30, 2017, Trump tweeted:

https://twitter.com/realDonaldTrump/status/847455180912181249

And during the public portion of a cabinet meeting on Jan. 10, 2018, Trump said:

“We are going to take a strong look at our country’s libel laws, so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts.”

At least one US Supreme Court justice now appears to agree with him.

How the Libel Laws Work

Libel and defamation actions arise under state laws, but the First Amendment limits their application. When Trump complains that the media are “totally protected” from such lawsuits, he’s wrong.

Trump is referring to the US Supreme Court’s 1964 landmark decision in New York Times v. Sullivan, which involved alleged defamation of a public official. The Court observed that America has “a 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.”

The Court was concerned that “would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so,” the Court wrote. Such deterrence “dampens the vigor and limits the variety of public debate.”

To minimize the risk of self-censorship in political discourse, the Court ruled that a public official must prove “actual malice” — that is, the statement must have been made “with knowledge that it was false or with reckless disregard of whether it was false or not.” In 1967, the Court extended the rule to “public figures.” But that heightened standard of proof doesn’t apply to suits against ordinary individuals.

How Trump Works the Libel Laws

When it comes to defamation lawsuits, Trump is a seasoned litigant, but not a particularly successful one. In 1984, he sued an architecture critic and lost. In 2006, he sued Timothy O’Brien, author of TrumpNation: The Art of Being the Donald, because O’Brien’s book said that Trump’s net worth was between $150 million and $250 million, not billions as Trump claimed. Trump lost again. In 2013, Trump sued comedian Bill Maher over a joke — but then quickly withdrew the complaint.

On Jan. 4, 2018, Trump’s newest libel lawyer, Charles Harder, sent an 11-page cease-and-desist letter to the publisher of Michael Wolff’s forthcoming book, Fire and Fury: Inside the Trump White House. The publisher responded by moving up the book’s release date. Shortly after publication, it soared to the top of The New York Times best-seller list.

On Oct. 16, 2019, Harder sent a letter to CNN threatening suit over its allegedly biased coverage of Trump. Nothing came of that either.

Harder’s latest salvo is aimed at Max Frankel, executive editor of The New York Times from 1986 to 1994. The Trump campaign’s basic complaint about Frankel’s Mar. 27, 2019 opinion piece, “The Real Trump-Russia Quid Pro Quo, is that there was no “deal” or “quid pro quo” between the campaign and Russia.

But Trump can’t possibly want people to read Mueller’s report, which concluded that his campaign knew about and welcomed Russia’s help. It can’t serve Trump’s interests to review anew the extensive evidence of contacts between his campaign and Russia throughout 2016. Trump can’t want the public to recall his efforts to obstruct the investigation into those contacts or Mueller’s refusal to exonerate him on those charges. Nor can it help Trump’s 2020 campaign to scrutinize his policies that have promoted Russian interests. He certainly doesn’t want the public poring over the Trump-Russia Timeline.

So what’s the agenda motivating the complaint that Harder filed on Feb. 26?

Justice Thomas Weighs In

The Times vows to fight the case, but the path to victory will require significant legal fees. That alone contributes to a chilling effect on free speech and a free press. The public never knows about self-imposed censorship resulting from media fear of a powerful libel bully.

But the stakes could be even greater. In February 2019, Justice Clarence Thomas wrote that the Court should reconsider the Sullivan standard because it had no basis in the Constitution.

New York Times [v. Sullivan] and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Thomas said. No other justice joined him — for now.

I don’t know if Thomas has been listening to Trump’s public proclamations about libel law. But Thomas’s wife, Ginni, appears to have Trump’s ear on another important issue. According to The New York Times, “For the past 18 months, she and other conservatives have plied the White House with memos and suggestions about which people to fire — and who should replace them.”

One more thing: Perhaps it’s a coincidence, but on Mar. 2, 2020, one of Trump’s most loyal congressional allies, Rep. Devin Nunes (R-CA), sued The Washington Post for defamation too.

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