Donald Trump wants to “open up” American libel laws to make it easier for politicians such as himself to sue newspapers that write things of which he disapproves. The problem faced by Trump — and by his pal Harry Reid, who wants to use federal law to censor political speech — is that the First Amendment severely limits what men who dream of shutting down newspapers (and little magazines) can actually do.
What does “opening up” mean in this context?
I spent most of my career as a newspaper editor, and blustering imbeciles like Donald Trump threatened to sue me about once a week or so. I never lost a case. I never even saw one get all the way to the courtroom, for that matter. That’s because, as with Rosemary Lehmberg’s persecution of Republican politicians in Texas, the point of libel suits — including the one National Review currently is fighting with global-warming clown Michael Mann — isn’t to win the case. The point is to harass you, to consume your time, energy, and money in dealing with the case. You might win the suit, you might never see the inside of a courtroom, but it still costs you $800 every time you pick up the phone with your lawyer. That’s why people sue, nine times out of ten: pure harassment.
American libel law is organized around a three-part test. For a claim to be libelous, it must be 1) false; 2) defamatory; 3) published with actual malice or reckless disregard for the truth.
All of these give Plaintiff Trump some problems.
Because a claim must be false to be libelous, truth is an absolute defense against libel. So, for instance, if I write that Donald Trump is a blazing jackass who has driven his companies into bankruptcy four times, mainly because he doesn’t know how to handle debt, Trump can’t do anything about that, because it is true. If I write that Trump is poorly positioned to take on Wall Street because he owes practically every bank on the street enormous sums of money, I’m golden, because it is true. If I write that Donald J. Trump is a lowlife who has cheated on his wives and betrayed his own family and the families of others through his remarkable personal commitment to adultery, Trump has no recourse, because this is true. If I write that the fact that Melania Trump was a client of Trump’s dopey little modeling agency strikes me as creepy indeed — I advocate the separation of sex and payroll — I’m on solid ground, because the facts of the case are not in dispute. If I write that you credulous yokels who believe that Trump is self-funding his presidential campaign have fallen for an obvious lie, I am protected by the fact that this is documented truth...
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