Wednesday afternoon, President Donald Trump took some time to talk to reporters about what he thinks of libel law, and what he wants to do about it. In the process, he showed either a complete lack of understanding regarding how these laws work, or a distressing preview of what he wants them to be. Saying he wants to change existing laws, which he called “a sham and a disgrace,” Trump proposed something that would in practice give far less protection to Americans who are the victims of false statements. He also seemed to reveal a desire for something far more troubling. His words:
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 smile as money pours into your bank account. We’re going to take a very strong look at that, and I think what the American people want to see is fairness.
Well then. Let’s break this down line by line.
“We are going to take a strong look at our country’s libel laws.”
The problem is that it’s the states that have their own libel laws, not the country as a whole. That means there’s nothing for Trump to even look at. Either he isn’t aware that there’s nothing he can do about these laws, he is but felt like talking anyway, or he has aspirations of convincing Congress to pass some sort of federal defamation law that’s more stringent than what any of the states have (this would likely run into some First Amendment issues). Any of these things seem possible, and none of them are good.
“When somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts.”
We already do, in the form of the aforementioned state laws. Despite what Trump says, existing laws provide recourse for people who are the subject of false and defamatory statements. Typically, they have to show that the statement was false, defamatory, published to a third party, and cause harm. In some states, you don’t even have to prove harm, depending on the subject matter. If a false statement was related to topics including a person’s job performance or alleged criminal activity, that could be deemed “defamation per se,” and it’s assumed to be harmful to a person’s reputation.
“If somebody says something that’s totally false, and knowingly false, that the person that has been abused, defamed, libeled, will have meaningful recourse.”
Now this is interesting. Here, Trump suggests a standard for defamation that is actually weaker than was currently exists! Libel laws today don’t even require that the person making the statement know that it’s false. If the subject of the statement is an ordinary person, they only have to prove that the false statement was made negligently. That means that person didn’t have to know that what they said was false, but they could have and should have known better. If the subject was a public figure, they have to prove what’s known as “actual malice,” which means either that they said something they knew to be false, or showed a reckless disregard for whether or not it was true. Under President Trump’s standard, neither negligence nor a reckless disregard would be enough for a person to get “meaningful recourse.”
“Our current libel laws are a sham and a disgrace, and do not represent American values of American fairness.”
As mentioned above, our current laws are stronger than what he just suggested, which seems pretty fair to me.
“So we’re going to take a strong look at that.”
Who does he mean by “we?” Presidents don’t write legislation, that’s up to Congress. Yes, I’m nitpicking, but I said I’d go line by line, and that’s what I’m gonna do.
“We want fairness.”
I have no problem with this sentence.
“You can’t say things that are false, knowingly false, and smile as money pours into your bank account.”
Wait a minute. Who exactly is he talking about here? The phrase, “as money pours into your bank account,” sounds awfully specific. Trump is clearly talking about the mainstream media, because who else has money pouring into their bank accounts from publishing statement? Not the blogger from Maryland Melania Trump sued for libel after he posted an article that included an unsubstantiated claim that she had once been an escort. I’m not defending the blogger, but when we’re talking about money pouring in, let’s be real about who we’re talking about. This is all about President Trump’s vendetta against the mainstream media, and this statement makes this clear. When he says he wants tougher laws, I’m thinking he doesn’t really care about tougher libel laws so much as tougher regulations for the media. If Republicans think net neutrality was too much regulation, they should have a fit over this one.
“We’re going to take a very strong look at that, and I think what the American people want to see is fairness.”
This is just a repetition to cap his point, but now I’m starting to question it. Fairness for whom? If Trump is talking about fairness for the average American, we’ve established that current libel laws are already stronger than the standard he’s proposing, and I’d say those laws are pretty fair as they are. The above discussion about bank accounts leads me to believe that he really just wants greater recourse for himself, which doesn’t seem very fair to me.