As Campaign 2020 Shifts into High Gear, Trump’s Defamation Suits Pose a Chilling Prospect for the Press

Trump has proposed rewriting the nation’s defamation laws, stripping away protective Supreme Court precedents that safeguard robust and unfettered debate on public issues, particularly political campaigns.

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“Presidents historically have not used defamation as a tool against the media, but it’s also true that there is no rule prohibiting powerful public figures from bringing a suit,” said Rod Smolla, dean of the Widener University Delaware School of Law and a leading First Amendment authority.

Trump broke with history. In the two months before his campaign sued WJFW, it filed libel complaints against The New York Times, CNN and The Washington Post, all over news or opinion content.

Libel and slander suits brought by public figures, particularly public officials, have to clear a very high evidentiary bar because of the Supreme Court’s landmark New York Times v. Sullivan ruling. A unanimous court held in 1964 that public officials had to prove not just that damaging published statements are false but that the publisher knew they were false or acted in reckless disregard to their falsity, a standard the court called “actual malice.”

At every step of litigation brought by public officials, courts with the actual malice standard in mind afford a media defendant the benefit of the doubt, Smolla said. So while that makes prevailing at trial improbable for Trump, it’s not out of the question should a court determine that the ad so deliberately and maliciously twisted his words that it inverted their original meaning, he added.