To paraphrase Touchstone in Shakespeare’s “As You Like it,” sweet are the uses of Donald Trump’s stupidities, which, like the toad, ugly and venomous, wears yet a precious jewel in his head.
Take Mr. Trump’s recent Feb. 26 cri de coeur for loosening libel laws to facilitate his contemplated suits against The New York Times and The Washington Post hoping for monumental monetary awards for their anticipated refusals to pay homage to his royal highness when he occupies the White House.
Mr. Trump apes the little boys and girls on college campuses who protest against micro verbal aggressions against their fragile mental faculties easily traumatized by ideas that dwell outside their tiny intellectual universes. In contrast to President Harry Truman, Mr. Trump believes if you can’t stand the heat, you do not get out of the kitchen. You take up arms against the heat.
Mr. Trump thundered in Fort Worth, Texas: “If I become president — oh, do they have problems. They’re going to have such problems … We’re going to open up those libel laws. So that when The New York Times writes a hit piece, which is a total disgrace, or when The Washington Post … writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected…So we’re going to open up those libel laws, folks, and we’re going to have people sue you like you never got sued before.”
Mr. Trump was characteristically factually, legally and philosophically off base. But something constructive could be unearthed from his subtext.
As regards the law, Mr. Trump falsely insinuated that the president of the United States commands authority over libel laws. He does not. There is no federal common law or statutory law of libel. Congress has neither an enumerated or implied power to create a federal libel law. Libel law is a creature of state law over which the president holds no jurisdiction.
Further, the First Amendment limits libel suits by public officials that a President Trump would be powerless to change. The Supreme Court held in New York Times v. Sullivan (1964) that such suits are permissible only for intentional or reckless defamatory false statements of fact (as opposed to opinions which are absolutely protected). Six Justices voted in favor of the ruling, and three would have gone further and prohibited any libel suits by public officials whatsoever. The probability of a Supreme Court decision overruling the 52-year-old precedent is zero.
As regards facts, Mr. Trump falsely insinuated that New York Times v. Sullivan creates an insurmountable barrier to successful libel suits by political officials or figures. In Goldwater v. Ginzburg, for example, former Republican presidential nominee and Sen. Barry Goldwater successfully sued FACT Magazine for a false and defamatory article on the eve of the 1964 elections insinuating that he was mentally unstable.
As regards philosophy, our Republic pivots on the principle that the people censure the government, the government does not censure the people. Thomas Jefferson elaborated, “If I had to choose between government without newspapers, and newspapers without government, I wouldn’t hesitate to choose the latter.”
Mr. Trump is right, however, that our libel laws should be loosened in one respect. They should facilitate suits against government officials who defame private citizens or groups. At present, the federal government enjoys sovereign immunity for defamation under the Federal Tort Claims Act. And government officials have an absolute immunity for malicious defamatory statements made within the “outer perimeter” of their official lines of duty under the Supreme Court’s ruling in Barr v. Matteo (1959).
Congress should revoke both immunities by statute. We do not want a president to employ a White House podium to defame Mexican immigrants as “killers” and “rapists” with impunity.
The president and other executive officers need daily lessons from James Madison, father of the U.S. Constitution, that in a republic, “the censorial power is in the people over the Government and not in the Government over the people.”