Bad Idea From Famed First Amendment Lawyer: Press Should Sue Trump For Libel

from the no,-they-shouldn't dept

Floyd Abrams is one of, if not the most famous First Amendment lawyers in the country. He gets and deserves a ton of respect. His most famous case was defending the NY Times against the US government when Richard Nixon tried to block the NY Times from publishing the Pentagon Papers. And he’s been involved in many other seminal First Amendment cases as well. That doesn’t mean he doesn’t sometimes make mistakes — like the time he insisted that SOPA wouldn’t violate the First Amendment because it was censorship for a good cause (i.e., for his clients at the MPAA). Or the time he falsely accused Wikileaks of indiscriminately leaking information that was actually being more carefully distributed.

And while I totally agree with Abrams in claiming that Donald Trump is the “greatest threat to the First Amendment since the passage of The Sedition Act of 1918,” I disagree with his thoughts on how to fight it. His argument is that the press that Trump has been insulting should sue Trump for defamation:

“Trump has denounced people in language that punctuated his campaign,” Abrams tells The Hollywood Reporter in a follow-up conversation. “If what he said is not pure protected opinion, then the press side ought to take a hard look and see if they have a basis for commencing litigation. They have to think creatively as no candidate in living memory has denounced the press as he has; no candidate has banned journalists from covering him because they didn’t like the tone or substance of what they are saying. And so, press lawyers ought to bear in mind that if things get rough, if the relationship is one of constant denigration and threats, it may be time for journalists to think about using libel laws in way that is constitutional.”

Admittedly, he has a lot of caveats in there, but it’s still a silly suggestion and would almost certainly backfire in a big way. Yes, Trump himself is somewhat famous for his bogus defamation threats addressed to the media, as well as his claimed plans to “open up libel laws” as President. So, you could argue that there’s some potential irony or karmic retribution were he to be hit with a defamation lawsuit by the very reporters he’s been threatening for so long.

But it’s also a strategy that seems highly likely to backfire in any number of ways. Suing a sitting President is just difficult, first of all. Second, the bar to defamation is quite high — as it should be — and it’s difficult to see how Trump has crossed that line at all, even as he falsely seems to believe the bar for defamation is much lower. Third, this is very much stooping to his level, and if Trump has shown anything this election year, it’s that when you stoop to his level in the mud, he’ll drown you in it, because he knows how to play that game better than anyone else. Anyone who did this would almost certainly be hit with a countersuit (at the very least) and would have to prove “actual malice” against a sitting President. They’d also have to point out actual false statements of fact that Trump made, rather than his usual ridiculous hyperbole.

Trump is, absolutely, a huge threat to the First Amendment. And lots of people and organizations need to be ready, willing and able to fight back on any attempt by the Trump administration to harm the First Amendment. But playing the low game of suing for defamation is the wrong way to go about it, and will be seen by his supporters as yet more evidence of the press trying to muzzle Trump.

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Comments on “Bad Idea From Famed First Amendment Lawyer: Press Should Sue Trump For Libel”

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Holmes says:

Re: Trump not 1A threat


“Trump is, absolutely, a huge threat to the First Amendment.”

That’s an extreme assertion… presented with zero evidence to support it. (how convenient!)

The 1st Amendment is explicitly a restriction upon Congress (“Congress shall make no law…”) , not the President (who has zero legitimate power to create law of any kind).

How exactly will Trump unilaterally abridge freedom of speech ?? ( have no idea, of course –it’s BS)

Adaline (profile) says:

Re: Re: Trump not 1A threat

Regardless of his position, if he keeps suing people for Constitutionally-protected opinions, he uses the government (court system) as a bludgeon to threaten speech based on content. If he wins a case, he creates a precedent which may be cited by other courts in the future. This can gradually add caveats to otherwise strong speech protections. And even if he never wins any case, the threat of getting sued — costing very significant amounts of time, money, and mental distress — alone will deter people from voicing negative opinions about him. Just see the ABA.

Holmes says:

Re: Re: Re: Trump not 1A threat


@Adaline: “… he uses the government (court system) as a bludgeon…”

The “court system” is a separate branch of government– not controlled by any President nor Trump.

The Federal court system is directly controlled by the Supreme Court and can very easily block any Presidential attempts to violate the 1st Amendment via the courts.
Any relevant court could sanction/punish Trump for patterns of frivolous or malicious court filings. Trump is powerless without the COOPERATION of the courts.

But perhaps you don’t trust the courts either… nor Congress ? Maybe you don’t trust the government at all ? Who then will protect your Free-Speech rights ?

Your understanding of government and your own political principles is probably highly deficient.

Anonymous Coward says:

Re: Re: Re:2 Trump not 1A threat

The “court system” is a separate branch of government– not controlled by any President nor Trump.

That does not stop Trump using it as a bludgeon, as the costs and stress of fighting through the courts alone is enough to convince people to remove speech, or just not take the risk in the first place.. Further if the president uses it as a bludgeon, it encourages other powerful people to do the same. A real deterrent to fighting through the US courts is the fact that costs are rarely awarded to the winner, and so people can with the case while going bankrupt.

Holmes says:

Re: Re: Re:3 Trump not 1A threat

The courts can be used as a bludgeon … ONLY if the courts permit themselves to be used as a bludgeon.

The courts can easily & immediately dismiss any merit less lawsuits brought by Trump. Trump’s targets would not even need a lawyer or any defensive litigation.

Sounds like you distrust the court system. That’s the core issue here, apparently… not Trump.

Wendy Cockcroft (profile) says:

Re: Re: Re:4 Trump not 1A threat

I’ve got one word for you, Holmes: “Gawker.”

The court system should have tossed the Hogan case out but didn’t. Whether you believe it served them right that they were totally destroyed or not, the fact is you can’t rely on the court system to uphold our rights. Too damn often, they do the opposite. CoughFISACough coughrubber stamp*

Anonymous Coward says:

Now You're Mad?

“it may be time for journalists to think about using libel laws in way that is constitutional.”

If journalists hadn’t become a bunch of water carrying pussies / dicks and reported the truth versus towing the line then they would have the power of their word (which they no longer have) rather than having to try a constitutional libel case like a bunch of dicks / pussies.

Stooopid lawyers and their hammers… walking around looking for nails to smash.

Anonymous Coward says:

“Trump is, absolutely, a huge threat to the First Amendment.”

I would agree to this about Donald Trump, but I’m really hoping it’s not true about President Trump. I’m honestly hoping that after the shock of things wears off, and he’s done with the initial bad decisions he’s likely to make, that he’s going to grow up a little and be the President this country needs him to be.

If that doesn’t work, then Right can always spend the next 8 years blaming his failures on Obama, just like the Left did to Bush…

Dark Helmet (profile) says:

Re: Re:

“If that doesn’t work, then Right can always spend the next 8 years blaming his failures on Obama, just like the Left did to Bush…”

Nope, they can’t. You don’t get to win both houses of Congress and the White House AND get to make SCOTUS picks, likely 2-3, AND get to blame the past for any shitstorms that occur on your watch. You do NOT get to do that….

Anonymous Coward says:

Re: Re: Re:

So what exactly ARE the requirements for not taking responsibility for your own actions and blaming someone else for what happens on your watch? What criteria has to be met to pass the buck? You need the House? The House and the Senate? The Presidency and the House?

The Country became Obama’s responsibility the moment he was sworn in. You don’t get to point the finger at anyone else when your in charge, it’s part of being a leader. But for the last 8 years we’ve had to listen to the Left blame Bush for damn near EVERYTHING and you want to say now that Trump doesn’t get to do that because “reasons”? Fuck that.

Mike, Dark Helmet… THIS is why people think this web site is Left leaning. RIGHT HERE is your reason.

History Lesson Time says:

Re: Re: Re: Re:

“The Country became Obama’s responsibility the moment he was sworn in”

The Legislative branch aka Congress creates the laws and controls the budget.

The Judicial branch is supposed to litigate how those laws abide to the constitution.

The administrative or executive branch is much more like George W Bush described as the “Cheer leader in chief”.

President Obama is one of three branches of government. So as much as you’d like to blame the President, the other two branches of government have much more control. Who ran those branches of government, republicans… Who stalled filling federal judge seats, republicans, who opposed the president in every action, republicans.

Who will now have prove they intend to help the working class who elected Trump, the republicans.

Talk to us in four years about how that’s worked out for your paycheck, for your increased health care costs, for more pollution killing children (drinking water, smog, rivers filled with mining run off, et), for less food safety and the rise in contaminants.

The test for who can govern is now here.
Republicans control all three branches of government, the outcome will solely be on their shoulders…

/grabs the popcorn.

Dark Helmet (profile) says:

Re: Re: Re: Re:

Hey, genius, did I say it was okay when Obama did it? No, I did not. All I said was that the Republican Party can’t blame everyone else if everything goes to shit when they control all the everythings. Nowhere did I say that the constant blaming of W by Obama and the Dems was okay.

Commenters….you want to know why we writers here react with scorn when we’re accused of partisanship, when we know the accusation itself is the partisanship in question? RIGHT HERE is your reason.

Learn to think better, please….

Anonymous Coward says:

Re: Re: Re:3 Re:

Ahh.. found a working proxy.

I said the left when I said “you”. But it really doesn’t matter does it? The point still stands. YOU said he doesn’t get to do that because “reason”. Not once in the last 8 years did I see you post anything similar when this site piled up on Bush, but by god on day 2 of Trump wining the Presidency, out it comes. It’s blatantly biased. I’m not even going to defend it after this point because no matter how you read your comment, it’s obviously biased.

Anonymous Coward says:

Re: Re: Re: Re:

Agreed, it seems like the same apologists for industry that they criticize regularly on this site are morphing into the very same authors that lots of us originally came onto techdirt to read. Its very depressing but it seems like the half the country that thinks like “us” (conservatives) will have to find different tech sites to talk about the VERY REAL issues that effect ALL AMERICANS EQUALLY like privacy and copyright elsewhere….which is retarded in its own way since its only the dropping of tribal left/right analysis that will allow us to work together to stop these travesty of policies continuing/growing.

GoForIt says:

It's not about winning, it's the point that he's making

Political speech isn’t subject to the same rules you or I face in everyday conversations.

This isn’t England where a candidate who lies or makes false claims could end up back in the polling station with citizens able to cast fresh votes.

We can’t sue for false advertising through the FTC for political speech, it’s outside of rules you and I have to follow.

I’m hoping what Mr. Abrams intentions are to bring a magnifying glass on the media. e.g. Les Moonves President of CBS: Trump’s run is ‘damn good for CBS’ – POLITICO

Media highlighted the click bait from candidates, again didn’t do actual journalism and they profited immensely from it. _By asking the press to sue, he’s exposing the press for focusing on their bottom line instead of democracy…_

orbitalinsertion (profile) says:

Wow what a great idea, promote and further the culture of litigiousness. Seriously, if someone had a solid actionable case they should have filed already… maybe. Trying to dig up something to file suit over is just stupid. Clearly no one noticed so can’t be much of a claim.

A better idea would have been to support people who have been defamation-suit-trolled by Trump (or anyone else for that matter, seriously, wth) so the case can come to a ruling or is dropped?

Andy says:


The press is supposed to report the truth and every time they do not they should be punished and even be prevented from publishing any future stories unless someone has vetted them and ensured there is no lie and no opinion, but if they report the truth then nobody gets to sue them unless it is plain to everyone that it was done in a malicious manner…They do not get to report opinions that is not what news is about.

I saw a reporter state that he believed a woman when she said trump raped her, He does not get to write that , he gets to write the facts and not opinion and that is the problem right now the press has decided they can use opinions to attack people they do not like or support to spread lies and at times opinion that they know are lies and they need to be punished if they cannot prove there opinions are fact or until a court has ruled that they are fact.

Wendy Cockcroft (profile) says:

Re: Lies!

It’s going to court and it’ll all come out in the wash. It’s irresponsible to believe someone just because they’ve pushed an emotional hot button. The Rolling Stone/Jackie Coakley story should have taught us that. Every accusation should remain unpublicised until it has been carefully investigated to determine the facts. If there’s a case to answer, bring it to court. Keep all parties anonymous till the case is heard. Is that fair? I call it “due process for all.”

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