Gullixson: Why Trump will fail in his quest to change libel laws

It should be evident by now, a year into this presidential administration, that there is really only one thing that stands in the way of Donald Trump. It’s the one thing he can’t get his hands around, to manipulate and to conform, either by wealth or decree, to his will.

It’s the one thing that drove hundreds of women and men - many of whom have never attended a political rally before - to fill Santa Rosa’s Courthouse Square on Jan. 20 and millions more to fill the streets of cities nationwide. And it’s the one thing that he appears to insulate himself from given his apparent antipathy for reading and allegiance to Fox News.

It’s known by two simple words: the truth.

And like rain on Trump International Golf Club in West Palm Beach, it’s ruining his game.

During his visit to the World Economic Forum on Friday, for example, he appeared to have forgotten he wasn’t at one of his manufactured rural Alabama rallies when he took another swipe at the media, noting how “nasty, how mean, how vicious and how fake the press can be.”

One can tell by his expression that he wasn’t expecting the response he was about to receive. Many in the room, including members of the global media, began to boo and hiss.

The moment came just hours after the president swept aside, without explanation, as “fake news” a New York Times report, sourced by four individuals, that he tried to fire special counselor Robert Mueller in June. It also came just a week after the president threatened to escalate his war against the news media by changing the nation’s libels laws.

“Our current libel laws are a sham and a disgrace and do not represent American values or American fairness,” he said, reading from prepared notes. “So we’re going to take a strong look at that.”

It was something he had pledged to do on the campaign trail as well, but this was the first time he brought it up in his capacity as president. Don’t be surprised if it’s also something he brings up on Tuesday when he delivers his first State of the Union Address.

But there are three simple reasons why this effort should and will fail.

First, the rules governing libel and slander laws are matters for state courts, not federal ones. There is simply no federal statute that Trump could alter - nor get Congress to revise - to make such a sweeping change.

Second, no single state, even if it wanted to change its defamation statutes, could alter the laws governing other states. Nor could it change the standard, one set in 1964 by the U.S. Supreme Court, by which a public official such as Donald Trump could win a libel suit against a newspaper or other member of the media. (More on that below)

And third, he is simply wrong when he says that the nation’s libel laws “do not represent American values or American fairness.” They represent our most fundamental value - protection against people of power and wealth using our system of laws to punish, either in criminal or civil court, those guilty of doing nothing more than telling the truth.

The fact is there is just one case, one Supreme Court ruling, that Trump would need to have overturned - and would probably like to see reversed - to get the change he seeks.

Here’s why that case is so important and why changing it would be a major setback.

In 1960, a group supporting a young preacher named the Rev. Martin Luther King Jr. took out a full-page ad in the New York Times calling attention to how civil rights protests in the South had been met with an “unprecedented wave of terror.” The ad, with the headline “Heed Their Rising Voices,” was signed by dozens of notables, from Jackie Robinson to Nat King Cole to Eleanor Roosevelt.

The movement cried out for financial support and media coverage, as one of the easiest ways for champions of Jim Crow laws to keep away nosy reporters was to sue for defamation, sometimes crippling newspapers in the process. At the time, essentially any mistake was considered libelous, and courts were filled with such lawsuits filed against news organizations.

The ad itself demonstrated the problem. Even though it didn’t target anyone by name, L.B. Sullivan, the Montgomery city commissioner responsible for supervising the city’s police department, sued the Times claiming he had been libeled. What were these injuries? The ad said that King had been arrested seven times when it was actually four. And it mentioned that after Alabama State College students sang “My Country, ’Tis of Thee” on the steps of the state capitol, they were surrounded by armed police. But the ad was wrong. The students actually sang “The Star-Spangled Banner.”

We laugh at these trivial mistakes now, but the courts took them seriously. And Sullivan not only won, but the Times was directed to pay $500,000 in damages.

The New York Times appealed all the way to the U.S. Supreme Court, which unanimously found that if a free press means anything it has to allow for inconsequential, unintentional mistakes without fear of the “chilling effect” of newspapers battling defamation suits. Moreover, it found that if public officials like Sullivan wanted to win a libel suit they needed to prove “actual malice,” meaning that the facts in the story were not only incorrect but the publication showed a willful disregard for the truth.

In writing for the majority, Justice William Brennan noted that the court’s decision was upholding a “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”

The impacts of the New York Times v. Sullivan decision were profound. It freed journalists to not only offer more robust coverage of the civil rights movement but the many movements and major events to come, from the Vietnam War protests to Watergate.

And it protects journalists today, including those who are left in the precarious position of covering a president who seems to regard any coverage that casts him in a poor light as grounds for a defamation suit.

But it remains that if Trump is going to win such a lawsuit, he needs to prove “actual malice.” And it remains that the best defense against those who would seek to clog our courts and silence the media with frivolous libel suits for their own political ambition is still known by two simple words: the truth.

Our country has never wanted it any other way.

Paul Gullixson is editorial director for The Press Democrat. He also is a past president and board member of the First Amendment Coalition based in San Rafael. Email him at paul.gullixson@pressdemocrat.com.