But it’s no surprise that Donald Trump isn’t planning to stand for anyone making fun of him after he takes office. And this isn’t simply an opportunity to criticize Trump but to express deep concern at the billionaire’s stated desire to protect wealthy Americans, celebrities, and corporations by making it more difficult, if not impossible, to criticize them in print, on TV, or online. Trump announced on Friday that he wants to strengthen libel laws:
“One of the things I’m going to do if I win—and I hope we do, and we’re certainly leading—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,” Trump said. He then cited perceived liberal news sources by name and added, “We’re going to open up libel laws and we’re going to have people sue you like you’ve never got sued before.”
To Trump’s supporters, this sounded like a brave stand against the hated mainstream media, but the ramifications of Trump’s poorly considered plan are horrifying. For someone like me, whose entire public career is predicated on First Amendment protections, changing libel laws to make them more like those of Great Britain, or, worse, China, would make it impossible to continue to offer substantive criticisms of public figures, and not just politicians. As someone who frequently receives threats of libel suits from authors and TV personalities, for me this is a horrifying development. The essence of American libel law, as determined by the Supreme Court during its long-ago liberal phase, is that public figures have substantially less protection from libel than private individuals because entry into the public sphere means that they give up some control over what others say about them. As the Court found in New York Times v. Sullivan (1964), even mistakes are protected so long as they were made without malicious intent, since otherwise there would be a chilling effect on free speech that would essentially gut the First Amendment.
Trump wants to change that standard, to remove the requirement that accusers show actual malice in order to bring a libel suit. Note that his main criterion for libel is “negative” coverage, with “false” added as a tertiary afterthought. At first glance this seems like a temper tantrum by a man who doesn’t like being made fun of, but there is a very serious background to this, and one that (of course) touches on race: The original New York Times v. Sullivan ruling came about because public figures in the South used libel laws to try to force the media to stop covering the Civil Rights movement and the atrocities committed against Civil Rights protestors.
It is perhaps not surprising that the late Antonin Scalia, whom Trump praised as his Platonic ideal of a Supreme Court justice, thought Sullivan was wrongly decided and also would have liked to see libel law made stricter.
Consider how difficult it would be to provide substantive criticism not just of a public official but of the public figures and television shows I cover if I had to fear than even a minor misstatement or an honest mistake, or even just perceived “negative” analysis, could result in thousands or millions of dollars in libel judgments. Since only the wealthy would therefore be able to buy the right to free speech, such a change would return power to billionaires and corporations, and guarantee that whatever they chose to present as truth would go essentially unchallenged. The irony, of course, is that while Trump believes his action would curb the “liberal” news media (and it would make covering the news more difficult and expensive), it would also have the effect of giving the much more conservatively oriented (and profitable) nonfiction programming freer reign. Since shows like Ancient Aliens, Hunting Hitler, or Curse of Oak Island rarely refer to living people, and the dead can’t be libeled, even under Trump’s proposal, the revised law would result only in suppressing criticism. Those seeking to distort allegedly educational content for personal or political gain could use libel laws as a weapon to push radical agendas. Given the way we know corporations like Discovery Communications, the Walt Disney Company, A+E Networks, and NBCUniversal have happily stomped on the very idea of truth in pursuit of cash, and have happily catered to conspiracy theorists and promoted ignorance and lies, this should scare anyone who values free expression.