Trump’s ‘Politics of Personal’ Clash With Defamation Law

Our President made remarks during a cabinet meeting today regarding his views on our nation’s strong commitment to freedom of speech — rather, his strong opposition to those Constitutionally-protected values:

“On a separate front, 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. If somebody says something that’s totally false and knowingly false, that the person that has been abused, defamed, libeled will have meaningful recourse.

Our current libel laws are a sham and a disgrace and do not represent American values or American fairness. So we’re going to take a strong look at that. We want fairness. You can’t say things that are false — knowingly false — and be able to smile as money pours into your bank account. We’re going to take a very, very strong look at that. And I think what the American people want to see is fairness.”

First, it is remarkable how closely President Trump’s antipathy toward the First Amendment tracks negative stories and coverage about him. His so-called interest in First Amendment issues is nothing of the sort, but rather a ‘politics of personal’ where his own self-interest becomes a supposedly important political issue. Today’s quote follows the recent release of Michael Wolff’s “Fire and Fury…”, a book about the Trump presidential campaign and White House, and revelations that the President desperately wants to suppress about his campaign and administration’s possible efforts to impact the election through contacts with Russian officials. Both have prompted very public reactions by POTUS, which will undoubtedly fuel wider distribution and greater sales of the book and greater interest in Special Counsel Mueller’s investigation. Because the POTUS is an elected official, clearly a public figure, any defamation claim he might assert would have to meet the extremely difficult ‘actual malice’ standard. Proving defamation of an elected official requires evidence of false statements that the author or speaker knew were false, or that the author or speaker made despite very strong indications that the statements were false.

Second, it is misleading and demonstrates extreme hubris for a sitting President to say he can “take a strong look at” the way we view our First Amendment freedom of speech and alter how we consider defamatory statements. The seminal U.S. Supreme Court decision about freedom of speech and defamation of public officials, New York Times v. Sullivan, issued over fifty years ago. The Supreme Court’s views about freedom of speech are as strong today as ever, illustrated by the Court’s protection of anti-gay picketers protesting at the funeral of a United States Marine in Snyder v. Phelps. So, unless we are prepared to ignore Constitutional principles like the separation of powers that helps define our three branches of government, the President cannot (legally) influence Supreme Court precedent on these issues. Moreover, libel/slander/defamation claims are torts, governed by state law that varies somewhat across the fifty states within U.S. Constitutional boundaries…so what ‘law,’ exactly, is going to receive that ‘strong look from our President? Except for the lawsuit that the President might file against Wolff, his publisher, or anyone else regarding Fire and Fury, I strongly suspect that the President’s “strong look” at defamation law and freedom of speech will be confined to hollow speeches and twitter barrages.

I do not think that the majority of Americans would sacrifice our freedom of speech to enable wealthy individuals who want to silence the media. Taking a ‘strong look’ designed to allow such behavior is directly contrary to the Constitutional principles our President has sworn to uphold. His behavior reminds me of a much older quote that is intended to comment about how fleeting life can be, in the context of history, but might as well describe our commander in chief’s breathless outbursts and, perhaps, his Presidency:

“Life’s but a walking shadow, a poor player that struts and frets his hour upon the state, and then is heard no more: it is a tale told by an idiot, full of sound and fury, signifying nothing.” Macbeth, Act V, Scene V.

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