Hearing President Donald Trump talk about wanting to change libel laws in the United States reminds me of the saying I, and probably most young kids, are told while growing up: If you don’t have anything nice to say, don’t say anything at all.
When Trump tweets or speaks from a podium about how libel laws are not strong enough, it is almost always after a story has been published that was critical of him.
Take the story published by The New York Times about sexual misconduct accusations against the then-presidential candidate. After the story went live, candidate Trump called it libelous and said U.S. libel laws should be changed to give public figures, like himself, a chance at winning libel lawsuits.
A couple of months later, in March of last year, Trump brings up the idea of changing libel laws again. It once again comes after The New York Times publishes a story critical of him.
“Change libel laws?” he asked in a tweet.
Most recently, Trump discussed opening up libel laws after the release of Michael Wolff’s book “Fire and Fury.” He called current libel laws a “sham” and a “disgrace.”
It seems, if Trump had his way, a change in libel laws would look like this: if you don’t have anything nice to say about the president, his administration or his companies, you won’t be publishing anything at all.
The problem is, that’s censorship. More important, that is not what this country was founded on.
Instead, our laws that protect free speech and a free press do the opposite. They allow for opinions to be shared, for criticism of the government and questioning of public leaders, including the president of the United States.
In the United States libel laws are state-based, not federal (so Trump could not amend libel law because there is not a federal statute governing libel). It was a Supreme Court ruling (New York Times Co. v. Sullivan) that set the standard for what is considered libelous. That standard, the actual malice standard, exists today and requires public officials to prove the publisher of information knew a statement was false when publishing it and acted in reckless disregard of the truth.
It is a high bar but for good reason. It’s because of this standard that the public doesn’t have to worry that a public official will be able to silence critical news stories or opinions just because they do not like it or it hurts their feelings.
Public officials have to prove that the information is false, not unflattering and that the person publishing knew it was false and published it anyway.
What’s important to point out is this standard applies to public officials. There is another standard, the negligence standard, which anyone can sue under for false statements. But, with public officials, the actual malice standard is applied to balance the importance of free speech against false statements.
Libel laws protect free speech and a free press. Without them, stories (including online) and opinions (including on social media) could be censored or removed, simply because someone’s feelings are hurt.
Most recently, President Trump discussed opening up libel laws after the release of Michael Wolff’s book “Fire and Fury.” He called current libel laws a “sham” and a “disgrace.”