Trump vs. the First Amendment

By Kevin D. Williamson

Sunday, February 28, 2016

Donald Trump wants to “open up” American libel laws to make it easier for politicians such as himself to sue newspapers that write things of which he disapproves. The problem faced by Trump — and by his pal Harry Reid, who wants to use federal law to censor political speech — is that the First Amendment severely limits what men who dream of shutting down newspapers (and little magazines) can actually do.

What does “opening up” mean in this context?

I spent most of my career as a newspaper editor, and blustering imbeciles like Donald Trump threatened to sue me about once a week or so. I never lost a case. I never even saw one get all the way to the courtroom, for that matter. That’s because, as with Rosemary Lehmberg’s persecution of Republican politicians in Texas, the point of libel suits — including the one National Review currently is fighting with global-warming clown Michael Mann — isn’t to win the case. The point is to harass you, to consume your time, energy, and money in dealing with the case. You might win the suit, you might never see the inside of a courtroom, but it still costs you $800 every time you pick up the phone with your lawyer. That’s why people sue, nine times out of ten: pure harassment.

American libel law is organized around a three-part test. For a claim to be libelous, it must be 1) false; 2) defamatory; 3) published with actual malice or reckless disregard for the truth.

All of these give Plaintiff Trump some problems.

Because a claim must be false to be libelous, truth is an absolute defense against libel. So, for instance, if I write that Donald Trump is a blazing jackass who has driven his companies into bankruptcy four times, mainly because he doesn’t know how to handle debt, Trump can’t do anything about that, because it is true. If I write that Trump is poorly positioned to take on Wall Street because he owes practically every bank on the street enormous sums of money, I’m golden, because it is true. If I write that Donald J. Trump is a lowlife who has cheated on his wives and betrayed his own family and the families of others through his remarkable personal commitment to adultery, Trump has no recourse, because this is true. If I write that the fact that Melania Trump was a client of Trump’s dopey little modeling agency strikes me as creepy indeed — I advocate the separation of sex and payroll — I’m on solid ground, because the facts of the case are not in dispute. If I write that you credulous yokels who believe that Trump is self-funding his presidential campaign have fallen for an obvious lie, I am protected by the fact that this is documented truth.

The second issue — whether a claim is defamatory — can get complicated. “Defamation” means damaging someone’s reputation, and if you are a serial adulterer, serial bankrupt, serial liar, an incompetent, and a tangerine-colored buffoon with the worst comb-over in the history of comb-overs, it is difficult to damage your reputation. The courts have held that some people are “libel proof,” meaning that their reputations already are so low that you cannot actually damage them. The textbook case of this is the serial killer Randy Kraft, whose libel case against a true-crime writer was thrown out on the grounds that serial killers have no good name to damage. But it need not be that extreme. For example, Penthouse founder Robert Guccione once sued Hustler magazine for — this is hard to believe — allegedly damaging Guccione’s reputation as a family man in an article reporting that Guccione maintained a live-in girlfriend while he was married to another woman. The basic claim was true, but Guccione was divorced at the time the article was published. The court found, reasonably, that Guccione had not established a reputation as a man of remarkable marital probity in the interim. Given that Trump has approached the sacrament of marriage with approximately the same seriousness as the great souls behind Hustler and Penthouse, it is not at all inconceivable that he might be held to the same standard in a similar context.

(The doctrine that some plaintiffs are “libel proof” is controversial, and one of the important cases establishing limits on that doctrine is Buckley v. Littell, in which the founder of National Review prevailed over a knucklehead who inaccurately described him as a furtherer of fascist policies.)

“Actual malice” and “reckless disregard for the truth” can get pretty complicated, too. For example, when an intellectually dishonest twerp like Matt Bruenig makes up out of whole cloth false racist quotes and attributes them to me, that’s actual malice. When a feckless talking head such as Andrea Tantaros manufactures ex nihilo a claim that I directed some sort of menstrual humor her way, that’s at the very least reckless disregard for the truth – which, come to think of it, is a pretty good description of Tantaros’s entire journalistic career.

But it is rare that controversial cases are that straightforward. For example, if X claims that Y did something wrong, and X is a source that is well-positioned to know this, or is a person of some responsibility, then it may not be libelous to report a false and defamatory claim from X about Y. For example, when Harry Reid falsely and maliciously claimed that Mitt Romney had failed to pay his taxes, he was defaming Romney, but when the New York Times repeated that claim, it wasn’t libeling Romney: When the top Democrat in the Senate is making those kinds of claims, it’s news even if it is a lie. Likewise, Donald Trump is lying when he says, e.g., that this magazine is going out of business, or that nobody listens to Hugh Hewitt, but these claims aren’t actionable. And media outlets covering Trump could hardly be expected to police his lies, since he lies basically all the time about basically everything.

Then there’s the problem of “fair comment.” For example, if I note that it’s really weird that Trump spends so very much time talking about his sex life (in contrast, to, say, a George Clooney or a Brad Pitt) and that this seems to me especially strange and unseemly given, e.g., his fondness for wearing cosmetics, his poodled-up hair, his being an unnatural shade of orange, his goofy and effeminate mannerisms, his boys’-school background, his habit of blaring the music from Cats and Phantom of the Opera at campaign events, the fact that he makes Liberace look butch by comparison, etc. – that sort of thing is covered under fair-comment protections. As is my standing observation that a substantial portion of his most enthusiastic followers are strangely arrested by gonadal tropes and homoerotic fantasies.

Truth is an absolute defense against libel. No wonder Trump is unhappy with that state of affairs.