Donald Trump

No, Trump Still Can't Outlaw Mocking Him

When it comes to "opening up" the First Amendment, the president's bark is worse than his bite.



At the start of a Cabinet meeting yesterday, President Donald Trump reiterated his desire to "take a strong look at our country's libel laws," promising that "when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts." The remarks come on the heels of the president's threat of a libel suit against the author and publisher of the recent White House tell-all Fire and Fury.

But even with a friendly Congress at his back, the president would have a hard time making it easier to win a defamation or libel suit. That's because America's federal defamation and libel "laws" aren't really laws at all, in the sense of statutes and regulations that can be modified by congressional or executive action. They're Supreme Court precedents limiting what types of published statements can be judged libelous or defamatory.

Specifically, the Court's 1964 ruling in New York Times Co. v. Sullivan holds that false statements about public figures—specifically public officials—cannot be the basis for defamation or libel judgments unless they are "knowingly" or "recklessly" false.

This standard, somewhat misleadingly called "actual malice," makes it extremely difficult for a public figure to win a libel suit against a critical media outlet. It can be done, but the plaintiff has to prove the publication either knew that what it was printing was untrue and ran it anyway, or deliberately ignored obvious indicators that the story was false. Opinions, criticism, and even flat-out insults are categorically insufficient to satisfy the standard.

Because those standards come from the Supreme Court, there's no readily apparent way short of a constitutional amendment to broaden the range of published statements that can be punished as libel. Over time, of course, a president can reshape the judiciary by appointing new judges, but in a number of recent decisions the current Supreme Court has shown itself strongly disinclined to tinker with protective First Amendment precedents.

So what could Trump do to actually get what he wants? That's easy. Just replace half the current Supreme Court bench with justices he can be sure would reject a half-century's worth of free speech jurisprudence. Piece of cake.

NEXT: Nuclear Button Bluster Aside, Trump's Intervention Impulses Can Be Curbed

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  1. Kim’s going to sue him for that short and fat tweet.

  2. Well hardy har har humph humph!

  3. One more time . . .

    You’re being trolled by Trump. The threat was meant to tell his supporters that the allegations in the book were false, and it was meant to recruit journalists like you into spreading that message.

    When you react to Trump’s tweets as if they were meant to be taken seriously, you’re carrying water for Donald Trump–whether you realize it or not.

    Do yourself a favor. Log out of twitter and never log back in again.

    Twitter is catnip to journalists. It draws them in and makes them silly.

    Looking back, you will never be proud of anything you wrote in response to something you saw on Twitter.

    1. Trump loves being talked about, good or bad, he loves being in the news, good or bad. No group of people have helped Trump get what he wants more than Trump haters that talk about him all day.

      1. And he’s been manipulating the headlines since his experiences with the tabloids in the ’80s.

        You can’t control what the media says about you, but you can make them talk about you. The genius of his twitter use is that he can control the topic of conversation, too.

        You can’t write a story about whether Trump can sue an author for defamation without associating defamation with the book in people’s minds.

        They’re carrying water for Donald Trump!

        If they don’t realize it . . . I’m not sure whether that makes it better or worse–but they’re gonna get him reelected if they don’t figure it out.

        1. Most of his supporters will say they’d wish he’d stop with the damn tweeting. You, on a libertarian website, or more of a fucking fanboy then Bubba in the street with a flag bandana.

          And how the fuck is it genius? Or are his historically low favorability numbers all part of the plan?

          1. You know, learning your enemy’s modus operandi is better than pretending you already know it when you fucking don’t. It helps you undercut them when they try to make a move instead of doing exactly what they want you to: case in point Hannibal Bacra and his failed invasion of Rome.

    2. Hurr durr 8D chess!

      It’s breathtaking how people go back and forth between “Trump tells it like it is and he means what he says!” and “He’s not being serious, he’s just saying that to get media attention and you’re falling for it!”

      1. Straw men aren’t breathtaking at all.

        1. I see arguments similar to yours all over the Internet. Trump says something good or smart – “Hey, look he’s not bad!” Trump says something stupid or bad – “That’s not meant to be taken seriously, you’re doing his bidding by talking about it.” It’s a fucking tiresome deflection of criticism.

          Maybe instead of Trump being a genius playing 4D chess with every tweet he crafts, he simply has a short attention span and is a thin-skinned narcissist? It explains why he’s so sensitive to criticism, why he makes tweets contrary to policy positions he’s officially taking, and a whole lot more. I don’t take Trump’s tweets very seriously, but for an entirely different reason than you.

          The hilarity of it all is that Trump’s fanboys would have been the first to fly off the rails if Obama constantly tweeted out shit like this about his critics, and now they insist you must not react lest you fall into the trap of the genius chessmaster in the White House.

          1. Remember when “cling to their guns and religion” was the most offensive thing ever said by a human being? Bet it still is somehow!

      2. Calidissident|1.11.18 @ 11:18AM|#
        Hurr durr 8D chess!

        It’s breathtaking how people go back and forth between “Trump tells it like it is and he means what he says!” and “He’s not being serious, he’s just saying that to get media attention and you’re falling for it!”

        Well you’re falling for it, so there’s that.

        Can I let you in on a secret? People who think Trump is doing a god job reducing government don’t read his tweets. People that hate Trump, read his tweets.

        You are really gonna be upset when it comes out that a WH intern is tweeting nonsense with some talking points using Trump’s handle.

        1. I don’t check Trump’s twitter, but if I see something he tweeted posted somewhere, I’m not going to refrain from forming an opinion about the stupidity of it because then I’ll be “falling for his trap!” as his moronic lapdogs say.

          I laugh just imagining what the reactions would be of the people who say that towards Obama or Hillary doing the same thing. The notion of the Trump crowd being calm and non-responsive towards them is utterly hilarious.

          1. Exactly. When you see some breathless moron getting apoplectic over one of Trump’s tweets you leap onto the bandwagon–which means you aren’t there to watch another pile of regulations reduced to a pile of ash.

            But rational folks are.

            The same people telling you that Trump is doing this are the ones who pointed out when Barry and Hillary did it.

            Back then you insisted that they weren’t trying to manipulate the media. But they were, Just like Trump does,

            And you just keep falling for it.

            1. What is it about reading tweets that makes it impossible to pay attention to anything else?

              Also, did you ever consider that since Trump is obviously a moron, the things he’s doing to government might not be smart either?

  4. “”When you react to Trump’s tweets as if they were meant to be taken seriously, you’re carrying water for Donald Trump–whether you realize it or not.””


    1. Everything statement a president makes should be taken seriously because he’s the fucking president.

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