We've written about Donald Trump's announced plans to "open up libel laws
" which was specifically directed at the Washington Post, which he argued was purposely writing bad articles about him. Despite the fact that, even as President, he can't really change such laws (there's a little First Amendment issue to deal with), we noted that he can create real problems for free expression. For example, by blocking a federal anti-SLAPP bill
from becoming law. And Trump is no stranger to SLAPP suits that are used to threaten or filed solely to silence people. He's threatened or sued an awful lot of people over perceived slights, such as claiming it was defamation
to post a picture of him next to a picture of South Carolina murderer Dylann Roof. And then, of course, there's the famous case where he sued reporter Tim O'Brien
for writing a book about him (that was actually mostly positive), but which pointed out that he was probably "only" worth a few hundred million dollars, rather than $10 billion. Trump lost that suit big time, and was basically humiliated in the process, but still insists that he basically won the lawsuit:
Just a couple of weeks ago, in an article in the Washington Post, Trump flat out admitted that the lawsuit against O'Brien was a SLAPP suit
, designed solely as a nuisance to O'Brien:
Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”
As Paul Levy noted in response, this blatant admission of filing the lawsuit for malicious reasons is exactly why we need a federal anti-SLAPP law
to protect against the very nuisance lawsuits Trump has a history of filing (and apparently no shame in admitting).
Earlier this week, Trump then went to the very same Washington Post which he had threatened to take on after opening up libel laws ("If I become President, oh, are they going to have problems. They're going to have such problems," he said about the Washington Post), and met with the editorial board for an on-the-record meeting. The audio and transcript are... kind of incredible
. Lots of people have had fun mimicking Trump's short-sentence, roundabout answers, but to see them all written out is pretty impressive. There's lots in the interview that is absolutely crazy, but we'll just focus on the defamation stuff here, and the fact that apparently, he's super excited about Hulk Hogan's win over Gawker
, thinking (incorrectly) that it had something to do with libel and might be useful to him:
RYAN: Mr. Trump, you’ve mentioned many times during the campaign, in fact including this morning, instances you feel where the press has been biased or unfair or outright false in their reporting, and you’ve mentioned that you want to “open up” the libel laws. You’ve said that several times.
TRUMP: I might not have to, based on Gawker. Right?
TRUMP: That was an amazing—
Because of the Trumpian nature of the interview, this discussion actually goes on for a while and sometimes twists into totally unrelated areas of conversation. I want to cover the high points, while leaving in the full context, but in some areas it's difficult. However, just the fact that Trump is excited about not needing to "open up" libel laws because of the Gawker jury award is exactly
the kind of point I was trying to make with my post about that decision. Giving people who like to sue or threaten to sue another "weapon" at their disposal, even if they know or should know that such lawsuits are frivolous, means they will be abused
. Here we have a serial abuser of defamation laws, someone who has proudly admitted exactly that, now excited about a ruling that's not even a defamation ruling, but which opens up the press to more costly legal disputes.
Washington Post Publisher Frederick Ryan Jr. continues to push Trump on this issue:
RYAN: My question is not so much why you feel they should be open but how. What presidential powers and executive actions would you take to open up the libel laws?
TRUMP: Okay, look, I’ve had stories written about me – by your newspaper and by others – that are so false, that are written with such hatred – I’m not a bad person. I’m just doing my thing – I’m, you know, running, I want to do something that’s good. It’s not an easy thing to do. I had a nice life until I did this, you know. This is a very difficult thing to do. In fact I’ve always heard that if you’re a very successful person you can’t run for office. And I can understand that. You’ll do a hundred deals, and you’ll do one bad one or two bad ones — that’s all they read about are the bad ones. They don’t read about the one hundred and fifty great ones that you had. And even some of the ones they write that are good, they make them sound bad. You know, so I’ve always heard that. I’ve heard that if you’re successful – very successful – you just can’t run for—
Notice the meandering answer again. He seems to think that anything that makes him look like a "bad person" is defamatory. But that's not how defamation law works. And notice, of course, that he never actually answers the question of what he can actually do. So Ryan pushes on, and Trump goes back to the Gawker "example":
RYAN: But how would you fix that? You’ve said that you would open up the libel laws.
TRUMP: What I would do, what I would do is I’d – well right now the libel laws, I mean I must tell you that the Hulk Hogan thing was a tremendous shock to me because – not only the amount and the fact that he had the victory — because for the most part I think libel laws almost don’t exist in this country, you know, based on, based on everything I’ve seen and watched and everything else, and I just think that if a paper writes something wrong — media, when I say paper I’m talking about media. I think that they can do a retraction if they’re wrong. They should at least try to get it right. And if they don’t do a retraction, they should, they should you know have a form of a trial. I don’t want to impede free press, by the way. The last thing I would want to do is that. But I mean I can only speak for – I probably get more – do I, I mean, you would know, do I get more publicity than any human being on the earth? Okay? I mean, [Editor’s note: Trump points at Ruth Marcus] she kills me, this one – that’s okay, nice woman.
Once again, he doesn't actually answer the question. He just says he'd like newspapers to do retractions when they're wrong. And that's a perfectly reasonable policy that many newspapers actually do try to follow. But it's got nothing to do with the law or what he could do as President. And it has nothing to do with if people write mean things about him that are truthful or are opinions that he doesn't like.
Thankfully, Ryan doesn't let up:
RYAN: Would you expand, for example, prior restraints against publications?
TRUMP: No, I would just say this. All I want is fairness. So unfair. I have stories and you have no recourse, you have no recourse whatsoever because the laws are really impotent.
MARCUS: So in a better world would you be able to sue me?
TRUMP: In a better world — no — in a better world I would be able to get a retraction or a correction. Not even a retraction, a correction.
RYAN: Well, now, you’ve been a plaintiff in libel suits so you know a little bit of the elements …
TRUMP: I had one basic big libel suit, it was a very bad system, it was New Jersey. I had a great judge, the first one, and I was going to win it. And then I had another good judge, the second one, and then they kept switching judges. And the third one was a bad judge. That’s what happened. But, uh…
So, again, he's never actually said what he would do as President to "open up" libel laws, and has supported Hulk Hogan's case against Gawker, which doesn't actually involve libel laws -- just punishing the press. And then he wants "fairness." And yet this is the same guy who just admitted to the very same newspaper that he once filed a defamation lawsuit because he knew it would force a reporter who had much less money than he did to outspend him in court. Fairness. Besides, what is he talking about saying that he has no recourse. He's got plenty of recourse. The press laps up and reposts everything he says. When people publish something he doesn't like, he almost always lashes out and gets plenty of press coverage for it. Or he tweets about it. He's got plenty of "recourse" in that he can respond and the court of public opinion can decide. And, yeah, it was a "bad judge" that actually followed the precedent of the Supreme Court on the First Amendment.
Ryan digs in some more at least trying to get Trump to commit to something
about libel law.
RYAN: But there’s standards like malice is required. Would you weaken that? Would you require less than malice for news organizations?
TRUMP: I would make it so that when someone writes incorrectly, yeah, I think I would get a little bit away from malice without having to get too totally away. Look, I think many of the stories about me are written badly. I don’t know if it’s malice because the people don’t know me. When Charles writes about me or when Ruth writes about me, you know, we’ve never really met. And I get these stories and they’re so angry and I actually say, I actually say, “How could they write?” – and many stories I must tell you, many stories are written that with a brief phone call could be corrected before they’re written. Nobody calls me.
STEPHEN STROMBERG, EDITORIAL WRITER: How are you defining “incorrect?” It seems like you’re defining it as fairness or your view of fairness rather than accuracy.
TRUMP: Fairness, fairness is, you know, part of the word. But you know, I’ve had stories that are written that are absolutely incorrect. I’ll tell you now and the word “intent”, as you know, is an important word, as you know, in libel. I’ll give you an example....
So, yeah, he'd basically try to do away with Supreme Court precedent
in NYT v. Sullivan on the "actual malice" standard. That's not something you get to do as President (separation of powers and all that), so that's interesting. And, also, Stromberg points out what everyone is thinking, which is that Trump seems unable to distinguish between factually incorrect
and an opinion of me I don't like
Oh, and then as for his "I'll give you an example" that I end on, he then goes on at fairly great length to not actually give any example
. Rather he just starts talking about protesters at his events, and the questions then turn to violence by his supporters and whether he condones it or not. And this goes on for a while -- probably a good 10 minutes or so -- before suddenly Trump brings it all back around to defamation.
TRUMP: .... You can have 20,000 people and you can have like two people. Usually – it’s amazing – usually it’s one person. I mean, it’s like they stage it. It’s very professional. They have like one person here, one person here, one person.
Okay, we’re talking about the media. So, I’ve never seen the media cover it from that angle. It’s always, “Trump had a” — and here’s the big thing, I mean, honestly, essentially nobody has heard
So basically ten minutes of him talking about protesters and his campaign events and he concludes by basically saying he doesn't like "the angle" from which the press covers the situations at his events, and somehow that's an example of "incorrect" coverage that he'd like to open up the laws about. In other words, if the press is not fawning propaganda, it's defamatory. There are countries where the press is run that way, and we usually call them banana republics.
And now that he's brought it back around to defamation after a long tangent, Fred Hiatt, the Editorial Page Editor, finally points out the ruling in NYT v. Sullivan (though he flips the names) and Trump's answer is... well, it's an answer.
HIATT: But just – given the Supreme Court rulings on libel — Sullivan v. New York Times — how would you change the law?
TRUMP: I would just loosen them up.
RUTH MARCUS: What does that mean?
TRUMP: I’d have to get my lawyers in to tell you, but I would loosen them up. I would loosen them up. If The Washington Post writes badly about me – and they do, they don’t write good – I mean, I don’t think I get – I read some of the stories coming up here, and I said to my staff, I said, “Why are we even wasting our time? The hatred is so enormous.” I don’t know why. I mean, I do a good job. I have thousands of employees. I work hard.
I’m not looking for bad for our country. I’m a very rational person, I’m a very sane person. I’m not looking for bad. But I read articles by you, and others. And, you know, we’ve never – we don’t know each other, and the level of hatred is so incredible, I actually said, “Why am I – why am I doing this? Why am I even here?” And I don’t expect anything to happen–
So again, it sounds like he considers that anything less than praise needs to be included in his newly "opened up" libel laws, despite the fact that the First Amendment would bar any such opening (and it would be unlikely that Congress would pass such a law in the first place). You'd think that someone running for President might at least consider the details of how the three branches of government work, but I guess that's too much to ask.
RYAN: Would that be the standard then? If there is an article that you feel has hatred, or is bad, would that be the basis for libel?
TRUMP: No, if it’s wrong. If it’s wrong.
RYAN: Wrong whether there’s malice or not?
TRUMP: I mean, The Washington Post never calls me. I never had a call, “Why – why did you do this?” or “Why did you do that?” It’s just, you know, like I’m this horrible human being. And I’m not. You know, the one thing we have in common I think we all love the country. Now, maybe we come at it from different sides, but nobody ever calls me. I mean, Bob Costa calls about a political story – he called because we’re meeting senators in a little while and congressmen, supporters – but nobody ever calls.
So now the standard is whether or not someone called? That's a new one. I mean, over in Europe, Max Mosley (who seems like the kind of guy Trump would get along with) once demanded that the press should be required to contact famous people
before they write about them, but even in Europe, where press freedom isn't nearly as strong as in the US, such a proposal was rejected.
RYAN: The reason I keep asking this is because you’ve said three times you’ve said we are going to open up the libel laws and when you ask you what you mean you say hatred, or bad–
TRUMP: I want to make it more fair from the side where I am, because things are said that are libelous, things are said about me that are so egregious and so wrong, and right now according to the libel laws I can do almost nothing about it because I’m a well-known person you know, etc., etc.
But that's not what libel law says
. What Trump is confusing is that the law says that as a public figure, which he undoubtedly is, the standard for defamation is false statements made with "malicious intent." It's not that he can't do anything about things that are "so egregious and so wrong," because he can. If they're clearly wrong, then it shouldn't be difficult to prove that and show that it was published with malicious intent. Instead, he seems to think that everything said that he doesn't like, or where the "angle" isn't flattering or where no one called him to get his version of things first is "defamation" and needs to be stopped. That's not how the First Amendment works. At all.
That was it that was directly about defamation law... but I did find it interesting that just a little while later, the conversation turned to Trump's comments on the Ricketts family, owners of the Chicago Cubs, who had spoken out against Trump and had put money into an organization that ran anti-Trump ads. In a similar manner to Trump telling the Washington Post it was "going to have problems" if he became President, Trump lashed out at the Ricketts family
, saying: "They better be careful, they have a lot to hide!"
The Washington Post Editorial Board asked Trump about this and he gave quite an interesting answer:
HIATT: I’d like to come back to the campaign. You said a few weeks ago after a family in Chicago gave some money to a PAC opposing you, you said, “They better watch out. They have a lot to hide.” What should they watch out for?
TRUMP: Look, they are spending vicious … I don’t even know these people. Those Ricketts. I actually said they ought to focus on the Chicago Cubs and, you know, stop playing around. They spent millions of dollars fighting me in Florida. And out of 68 counties, I won 66. I won by 20 points, almost 20 points. Against, everybody thought he was a popular sitting senator. I had $38 million dollars spent on me in Florida over a short period of time. $38 million. And, you know, the Ricketts, I don’t even know these people.
HIATT: So, what does it mean, “They better watch out”?
TRUMP: Well, it means that I’ll start spending on them. I’ll start taking ads telling them all what a rotten job they’re doing with the Chicago Cubs. I mean, they are spending on me. I mean, so am I allowed to say that? I’ll start doing ads about their baseball team. That it’s not properly run or that they haven’t done a good job in the brokerage business lately.
Remember, this is the same guy, just minutes earlier, who was talking about the need to "open up libel laws" for people saying things about him that he thought was mean, and that he felt was unfair because they didn't present his side of the story. And he has such little self-awareness that he's then publicly advocating for a smear job against the Ricketts family, based on nothing more than his desire to attack them.
Ryan follows this up by asking if he planned to do this as President, and Trump basically says that, no, he'd let his revenge plan simmer until he was out of office. Because that's healthy
RYAN: Would you do that while you are president?
TRUMP: No, not while I am president. No, not while I’m president. That is two phases. Right now, look, you know, I went to a great school, I was a good student and all. I am an intelligent person. My uncle, I would say my uncle was one of the brilliant people. He was at MIT for 35 years. As a great scientist and engineer, actually more than anything else. Dr. John Trump, a great guy. I’m an intelligent person. I understand what is going on. Right now, I had 17 people who started out. They are almost all gone. If I were going to do that in a different fashion I think I probably wouldn’t be sitting here. You would be interviewing somebody else. But it is hard to act presidential when you are being … I mean, actually I think it is presidential because it is winning. And winning is a pretty good thing for this country because we don’t win any more. And I say it all the time. We do not win any more. This country doesn’t win. We don’t win with trade. We don’t win with … We can’t even beat ISIS. And by the way, just to answer the rest of that question, I would knock the hell out of ISIS in some form. I would rather not do it with our troops, you understand that. Very important. Because I think saying that is very important because I was against the war in Iraq, although they found a clip talking to Howard Stern, I said, “Well…” It was very unenthusiastic. Before they want in, I was totally against the war. I was against it for years. I actually had a delegation sent from the White House to talk to me because I guess I get a disproportionate amount of publicity. I was just against the war. I thought it would destabilize the Middle East, and it did. But we have to knock out ISIS. We are living like in medieval times. Who ever heard of the heads chopped off?
Got it? Don't say mean things about Trump because that's libel and needs to be stopped, but also don't publicly disagree with him either, because then it's fair game to make up stuff about you... and that might not be Presidential, but that's okay because he's got a smart uncle and because winning is Presidential and it's about winning and ISIS chops people's heads off and ohmygod how much longer is this interview and when can we get out of here please?
Seriously, America, what the hell is going on with the electorate right now? I realize all the candidates are basically terrible, but really?