fake news

If All the News Is Fake, Why Isn’t Donald Filing Libel Suits?

The Trump administration has declared a war of words on the press. Just how far will they take it?

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In his press conference last Thursday, Trump continued his tirade against the news media, declaring that the news is fake (again), that the negative coverage of his White House is false, and that journalists are liars. He stated that he was speaking  “directly to the American people … because many of our nation’s reporters and folks will not tell you the truth.” He ranted that “much of the media in Washington, D.C., along with New York, Los Angeles in particular, speaks not for the people, but for the special interests and for those profiting off a very, very obviously broken system.”

Then Trump took his attacks a step further, arguing that to not attack the press would be unethical: “The press has become so dishonest that if we don’t talk about, we are doing a tremendous disservice to the American people. Tremendous disservice. We have to talk to find out what’s going on, because the press honestly is out of control. The level of dishonesty is out of control.” His communication with reporters during the Q-and-A portion of the press conference was combative, his tone when addressing reporters was generally snide, and reports called the conference “surreal,” “chaotic,” “unhinged” and “alternative-reality.”

On Friday, Feb. 17, the day after the press conference, Trump sent a tweet to follow up his attacks on the press: “The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American people.” Only a few weeks ago, Trump declared  the fourth estate the enemy of him and his government which revealed how little respect Trump has for the First Amendment.  Then he took aim at the judiciary which he attacked when judges blocked his immigration order. Now, he’s declared the press the enemy of the U.S. populace It appears that Trump does not believe much in the rule of law, unless of course it benefits him in the courtroom,  

The New Face of Libel Suits

And as I reported in DAME only a few weeks ago, these are strange times for U.S. news media, not only because of the attacks from the White House, but because of a new brand of litigation, originating with one particular lawyer, named Charles Harder, who put Gawker.com out of business with a single lawsuit. As I wrote before, the goal wasn’t to punish the media outlet; the goal was to annihilate it.

Donald Trump had never been shy about suing the media. According to the Columbia Journalism Review, from the beginning of his presidential campaign until the end of September 2016, Trump threatened to sue the media eleven times. In fact, October 2016, after the tape leaked of Trump bragging about being able to “grab” women without consequences, the New York Times wrote “an article that featured two women accusing him of touching them inappropriately years ago.” Trump’s attorney at the time sent a threat letter demanding the story be taken down. The Times refused, and Trump apparently let the matter drop.

But last summer, a different Trump lawsuit was afoot. Melania Trump, the soon-to-be  first lady, hired Charles Harder, the Gawker-killed, to sue the UK’s Daily Mail for libel, over an article the Daily Mail published claiming that the First Lady once worked as an escort. The First Lady, represented by Harder, has asked for $150 million in damages. The suit remains ongoing, and if Gawker’s demise was unsettling, the involvement of the First Family in this new lawsuit is downright disturbing.

If The News is So Fake, Where Are Trump’s Libel Suits?

Given Donald Trump’s apparent belief that the news media is currently smearing him right and left and his similar penchant for libel suits, why isn’t he filing lawsuits now? Perhaps because the news isn’t so fake after all? The great maxim in libel law is, of course, that the truth is the great defense.

To win a libel case, a plaintiff—if the plaintiff is an ordinary person, not a high-profile individual—must prove four things: (1) that the defendant made “a false statement purporting to be fact”; (2) that the false statement was published; (3) the defendant’s fault, “amounting to at least negligence”;  and finally (4) that the plaintiff suffered some kind of damages.

However, if the libel case involves a public official (such as the POTUS) or a public figure (such as Donald Trump before he was POTUS), the plaintiff must meet a higher proof standard. The landmark Supreme Court case New York Times v. Sullivan (1964) established the “actual malice” standard for public official libel. After Sullivan, public officials had to prove that publication of statements, even false statements, were done with actual malice. Actual malice means that the person writing is aware that the statements are false or acts with reckless disregard of the truth.

To learn more about this issue, I spoke with law professor Mary-Rose Papandrea of the University of North Carolina School of Law, an expert in media law and First Amendment law. “If Trump actually filed a libel suit that could get past the early motion to dismiss stage, “which would be difficult because he is a public figure”, “the case would go into discovery, and I am sure Trump would not like that.”

Why not? During discovery (just like for any lawsuit), Trump’s opponents would have the opportunity to request all sorts of documents and conduct all sorts of interviews (i.e., depositions) relevant to the suit. That is, anything that might help the publisher prove that the allegedly libelous material is true would come to light.    

In, say, the threatened case against the New York Times for publishing the story about the alleged inappropriate touching of women, if Trump ever did bring a lawsuit, the Times would be able to put into the public record many things Trump would likely rather not have there. Papandrea points out, however, “Although Trump has not in fact filed a lawsuit against the Times arising out of those stories, it was quite notable that he even sent that threat letter.”

It Doesn’t Matter Whether He Sues

But really, it doesn’t matter whether Trump files libel suits. According to Papandrea, “Trump may feel like he is achieving the goals he wants to achieve by constantly attacking the press in tweets and press conferences. He knows the press is not popular with the American people already, so he does not need to sue the press to sow seeds of suspicion and distrust.” A libel suit, which would open Trump up to the discovery process and perhaps reveal secrets he’d rather keep hidden is far from necessary. Papandrea states, “He doesn’t need lawsuits to get at least some segments of the American people to second-guess what is ‘true’ and what is a ‘fact.’”

Trump’s behavior could be affecting more than the U.S. populace—it could be hurting the press as well. Papandrea notes, “All of his raging against the press could be having a ‘chilling effect’ on publishers who are afraid of publishing stories without extensive investigation because there is a real concern that at any moment he will, in fact, bring a lawsuit.”

However, there is a risk to Trump that his behavior may, in fact, have the opposite effect on the press: “On the other hand, certain publications may be emboldened to investigate the Trump investigation even more. It is not clear Trump’s attempt to silence the press will work.”

What we do know for sure is that things are changing, and quickly. A libel suit no longer means what it used to mean. Now it means that your publication’s entire existence is at risk, as Rachel Maddow explained so well last week. Now, we live in a time when the President has declared the press the enemy, and the First Lady has hired the lawyer who brings down publications as her personal hired gun.

Papandrea points out, “I would not be surprised if Trump does file a lawsuit against the press at some point. As we saw with the Gawker litigation, a great way to silence the press is to bankrupt it with a massive jury verdict.”

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