THE BLOG
12/28/2016 10:55 am ET Updated Dec 28, 2017

Donald Trump And The Constitution

One of Donald Trump's plans when he becomes president is to strike back at the press for the negative stories they print about him. During the primary season, he made these comments about our libel laws. "One of the things I'm going to do if I win, and I hope we do and we're certainly leading. I'm going to open up our libel laws, so when they write purposely negative and horrible and false articles, we can sue them and win lots of money." He repeated these remarks in October after he won the Republican nomination: "Well, in England they have a system where you can actually sue if someone says something wrong. Our press is allowed to say whatever they want and get away with it. And I think we should go to a system where if they do something wrong . . . . then yes, I think you should have the ability to sue them."

Presumably Trump is concerned that once he becomes president, the press will examine each and every word and act of his presidency and comment adversely on what he does. There are at least three problems with his plan to "open up" the libel laws.

First, libel laws are not the creation of the federal government. They are common law torts that are enforceable in state courts in the same way that a trespass or battery claim is enforced. They are seldom if ever a matter of legislation. It is difficult to imagine that Congress would "open up" libel claims by passing a federal law making libel more enforceable, and, in particular, making criticism of the government subject to a stricter rule.

A very long time ago, in the Alien and Sedition Acts of 1798, the federal government tried to punish adverse comments made by the press about its actions. That law made it a crime to "write, print, utter or publish . . . . any false, scandalous and malicious writing against the government." Those laws are considered one of the most repugnant acts of legislation ever passed by Congress and can hardly stand as a proper model for current legislation.

In 1918, Congress also passed the Sedition Act, which forbade the use of "disloyal, profane, scurrilous, or abusive language" about the United States government, its flag, or its armed forces, or the "use of any other language that caused others to view the American government or its institutions with contempt." One provision of the law was upheld in 1919 in the case of Abrams v. United States. In that case, Justice Oliver Wendell Holmes Jr., dissented, writing in a famous phrase: "[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market." The majority opinion in Abrams was repudiated in many later Supreme Court cases which cited it only to quote from Justice Holmes' dissent.

Second, even if President Trump tried to get such a law passed and persuaded the House to do so, the Democrats in the Senate could easily filibuster such a bill.

The third problem for President Trump is the First Amendment to the Constitution. The famous words from that Amendment states that "Congress shall make no law . . . abridging the freedom of speech or of the press." Of course, there are many federal laws that punish speech and the press, such as laws making it a crime to commit perjury or fraud or to disclose classified information.

But as far as libel is concerned, in 1964, the Supreme Court laid down a very restrictive rule in New York Times v. Sullivan: "The constitutional guarantees [of the First Amendment] require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." That rule was extended to cover not only a public official, but a "public figure" as well. And public figures were later defined in a 1974 case, Gertz v. Welch, as individuals who have assumed "roles of especial prominence in the affairs of society. . . . More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment."

Subsequently, the Supreme Court has reaffirmed the holding of New York Times v. Sullivan, again and again. In the most recent discussion of the case in 2012, United States v. Alvarez, the Supreme Court struck down a federal law that made it a crime for an individual to falsely state that he or she was awarded the Congressional Medal of Honor. Even if the statement was untrue, the First Amendment could protect lies. The Court said: "some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee." It later said "The remedy for speech that is false is speech that is true," echoing the Holmes dissent in Abrams.

What was the line-up of the Justices in Alvarez? Justice Kennedy wrote the majority opinion, and it was supported by the four liberal justices (Ginsburg, Breyer, Sotomayor and Kagan), as well as by Chief Justice Roberts. Justice Alito dissented (with Justices Scalia and Thomas). But even Alito affirmatively cited the Sullivan case. So there is simply no inkling that any of the current Justices are of a mind to overrule Sullivan, certainly not among the six Justices who were in the majority.

The First Amendment, as interpreted by the Supreme Court, outweighs any act of Congress. Libel, defamation or slander involve acts of speech or of the press. Thus they are protected by the First Amendment as interpreted by the Supreme Court in Sullivan. Regardless of what Trump can persuade Congress to do, the current Court is not likely to overrule one of its greatest and most important precedents.

Leon Friedman is a Professor of Constitutional Law at the Maurice A. Deane School of Law at Hofstra University.