Why Trump’s threat to sue the New York Times for libel will not succeed. Last Thursday, following publication of a New York Times story describing Donald Trump’s unwanted sexual touching of two women, Trump and his lawyers threatened to sue the Times for libel. In a letter to Trump’s attorney, the Times defended the story as “newsworthy information about a subject of deep public concern” and told Trump that if he did not agree, it would be happy to meet him in court.
Legal experts agree that there is no merit to Trump’s threatened lawsuit. Trump could never win a libel suit against the Times. He would lose not only because he would have a difficult time proving that the allegations were false, but also because he has no chance of showing “actual malice”—that the Times published the statements with “reckless disregard” of the truth. To show reckless disregard, Trump would have to prove that the Times knew or had strong reason to believe the story was false and published it anyway. View image on TwitterFollowThe New York Times ✔@nytimesThe NYT's lawyer responded to a request from Donald Trump's lawyer to retract an article http://nyti.ms/2e8SnYW 1:48 PM - 13 Oct 2016 3,2563,256 Retweets5,6685,668 likes Demonstrating reckless disregard of the truth is a requirement imposed by the Constitution. The Supreme Court announced this in a landmark 1964 libel case, New York Times v. Sullivan, one of the most important First Amendment cases in history. The reckless disregard standard was designed to protect the media from a threat that was all too common in those days: public figures attempting to use libel law to punish the media for unfavorable coverage, and to silence the press—exactly what Trump is trying to do.
Libel law protects reputations against statements that are defamatory and false. Prior to the Sullivan decision, libel law tended to prioritize reputational rights over the rights of the press. A libel plaintiff did not have to prove that a defamatory statement was false or show that his reputation had actually been harmed. The falsity of the statement was assumed; if a publisher wanted to avoid liability, it would have to prove the statement’s truth, which could be expensive and difficult. Libel law was “strict liability,” meaning that a publisher could be liable for any false statement, even if the errors were benign, minor or innocent.
Before the 1960s, libel law posed a real threat to the press. Despite efforts by publishers and their lawyers to screen publications for potentially libelous material, newspapers and magazines were regularly confronted with libel suits, and some were even bankrupted by libel judgments. The New York World and the New York Evening Graphic were run out of business by such suits in the 1930s. Journalism textbooks urged reporters to “lean over backwards” to avoid writing anything that “might possibly be construed as libelous,” and to avoid “any words to which offense might be taken.” For decades, press lawyers tried unsuccessfully to obtain a Supreme Court ruling restricting liability on constitutional grounds.
Before the 1960s, libel law posed a real threat to the press.
The “libel nightmare,” as publishers dubbed it, became even more frightening in the 1950s. In 1953 the American Newspaper Publishers’ Association reported that libel suits were on the rise; the number had grown by several hundred percent in recent years. With the Red Scare, a nascent civil rights movement, and acerbic media attacks on public figures, aggrieved politicians and public officials were mobilizing libel law to intimidate and coerce the press.
New York Times v. Sullivan came out of this climate. The case involved an advertisement placed in the New York Times by a civil rights group. The ad detailed the efforts of officials in Montgomery, Alabama—including police commissioner L.B. Sullivan—to suppress civil rights protests. The ad was mostly true, but there were a few minor errors. Sullivan alleged that the Times, in publishing the ad, defamed him. An Alabama trial court awarded half a million dollars, upheld by the state’s supreme court.
Southern opponents of the civil rights movement had discovered the power of libel law as a weapon against the press. The day after the verdict in Sullivan, the Alabama Journal predicted that the award could “have the effect of causing reckless publishers of the North to make a re-survey of their habit of permitting anything detrimental to the South and its people to appear in their columns.” For its civil rights reporting, the New York Times was defending itself in ten separate libel lawsuits by Southern officials claiming more than $6 million in damages. The Times withdrew its reporters from Alabama and might have gone out of business if it had been forced to pay the judgments.
In a 9-0 decision, the Supreme Court, in an opinion by Justice William Brennan, reversed the judgment. The Court wanted to protect the civil rights movement; the justices were also worried about the recent uptick in political libel suits and its implications for news reporting. For the first time, the Court recognized that libel raised a First Amendment issue and that libel law, as it then existed, infringed on constitutionally protected publishing rights. In stirring and eloquent language, Brennan described the right of the public to criticize its leaders as the essence of democracy—the “central meaning” of the First Amendment.
The Court recognized that libel raised a First Amendment issue and that libel law, as it then existed, infringed on constitutionally protected publishing rights.
Sullivan eliminated strict liability in libel cases involving public officials. Critical news coverage was protected by the First Amendment even if erroneous, so long as the errors were not made with “actual malice”—with knowledge that the statements were false or with reckless disregard of their truth or falsity. “Erroneous statement is inevitable in free debate, and … must be protected if the freedoms of expression are to have the ‘breathing space’ that they need … to survive,” Brennan wrote. The press should have “Erroneous statement is inevitable in free debate, and … must be protected if the freedoms of expression are to have the ‘breathing space’ that they need … to survive,” Brennan wrote.
The press should have latitude to make mistakes in reporting; it was impossible to ensure complete accuracy, and to penalize the press for innocent or negligent errors would impair its ability to report the news.
Newsworthy » tells the story of how American law and culture struggled to define and reconcile the right of privacy and rights of the press at a critical point in history. The Court also took issue with the presumption of falsity and the defendant’s burden to prove the truth. “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to … ‘self-censorship,’” Brennan wrote. After Sullivan, plaintiffs would have the responsibility of proving the falsity of allegedly libelous statements.
It was a major victory for the press—and the public. “‘Publish and be damned!’ is a brave slogan that most newspaper editors aspire to in principle,” wrote Newsweek shortly after the decision.
“Publish and be sued, however, has long been a fact of journalistic life…. [t]he Supreme Court handed down a decision that greatly strengthens American journalism.” It certainly was not the end of libel, but it may have been the end of the “libel nightmare.”
Donald Trump is free to force the Times to defend itself in court—and to send as many threatening letters as he wants. The First Amendment does not protect the press against those kinds of burdens. But it does protect the press from the kinds of crippling libel judgments over political news coverage that had been all too frequent not so long ago. Trump can sue the Times, but he cannot win. If Trump wants to convince the public of his version of reality he will have to do so not by quashing the press, but by successfully selling his views to Americans in the marketplace of ideas.
Samantha Barbas is Professor of Law at the University at Buffalo Law School. She is the author of several books including, most recently, Laws of Image: Privacy and Publicity in America and Newsworthy: The Supreme Court Battle over Privacy and Press Freedom (forthcoming).
