A year ago, candidate Donald Trump proclaimed that, if elected president, he would change the nation’s libel laws to make it easier for people like him to sue those who make false and defamatory statements about them. “One of the things I’m going to do if I win,” he promised, is “to open up our libel laws” so that when people say “purposely negative and horrible and false” things about me “we can sue them and win lots of money.” We’re going to change the law, he declared, so when people write things that are “a total disgrace . . . we can sue them and win money instead of having no chance of winning because they’re totally protected.”
At the time Trump made this statement, people who knew anything at all about the law of libel were stunned. Could he really be that ignorant? Well, yes. Trump’s assumption was that those who write “purposely negative and horrible and false” things about others are “totally protected” from liability. Under American law, though, nothing could be further from the truth.
Although the Supreme Court has given substantial protection under the First Amendment to those who inadvertently make false statements in public debate, the Court in its landmark 1964 decision in New York Times v. Sullivan made perfectly clear that even a public official can sue for libel if another individual makes a false and defamatory statement about him, if the person who made the statement acted either with knowledge of falsity or reckless disregard for the truth.
In other words, under American law, Trump didn’t need to “open up our libel laws” to sue someone for making a “purposely negative and horrible and false” statement about him. All he had to do was to sue. That he was running for president of the United States and obviously had no awareness of one of the most famous constitutional decisions in American history was stunning.
Now, though, we are presented with an ironic and intriguing situation. With Trump’s early morning tweet several days ago accusing former President Barack Obama of unlawfully tapping his phone calls “during the very sacred election process,”and adding that “This is Nixon/Watergate. Bad (or sick) guy!,” Trump unambiguously accused former President Barack Obama of criminal conduct. In so doing, Trump committed the quintessential libel.
It would be truly fascinating if Obama were now to sue Trump for defamation. If Obama did sue Trump, he could almost certainly “win lots of money” from him. Indeed, there seems no doubt that Trump’s statement was false, defamatory, and at the very least made with reckless disregard for the truth. Such a lawsuit would be amusing and entertaining beyond belief.
Of course, this will not happen. Barack Obama is not that kind of “guy.” He is a person of integrity, calm, and self-restraint. So, perhaps sadly, we will be spared the drama of such litigation. But this is just one more illustration of why the person currently in the White House should not be there.
Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago and author of the forthcoming book, Sex and the Constitution.
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