After a relative silence on the topic, President Trump vowed to re-examine libel laws in the United States. This pledge, coming on the heels of Michael Wolff’s Fire and Fury, surely comes with an intent to limit the ability of the press and other news organizations from publishing unflattering remarks about the president. Trump further exclaimed that “You can’t say things that are false, knowingly false, and be able to smile as money pours into your bank account.” Opponents of the president might be quick to condemn his rhetoric and claim that a breakdown on libel laws will only escalate democratic backsliding in the United States. But, while the substance of Trump’s rhetoric is inflammatory, he lacks the judicial or legislative muscle to execute any revisions of libel law. Therefore, Trump’s attacks pose little threat to the freedoms of the press, especially when compared with hybrid democracies such as Russia or Turkey.
Threats against the press normally go hand in hand with democratic erosion. In Ozan Varol’s work Stealth Authoritarianism he notes that in hybrid regimes libel lawsuits have become a standard tool to target institutions devoted to monitoring the transparency of the government such as the media, think tanks, or NGOs. Countries such as Russia and Turkey have not hesitated to use libel in order to silence the media. In Russia, libel laws have become criminalized and using statistics from the Mass Media Defence Centre, Varol estimates that around 60% of all defamation lawsuits are brought against journalists. Turkey has opted to use a variety of fines and jail sentences to enforce its libel laws. With the mix of fines and jail time, hybrid democracies attempt to create a chilling effect within the press. This has the ability to lead reporters to self-censor which creates the desired lack of criticism that political leaders are seeking.
The use of weaponized libel against the press in Russia and Turkey crosses into an authoritarian territory. In Huq and Ginsburg’s work, How to Lose a Constitutional Democracy, Russia’s use of the courts to silence criticism is highlighted as an example of anti-democratic acts undertaken through a democratic medium. Libel lawsuits are legitimate legal actions taking place in democratic societies all across the world. Nonetheless, with the cases of hybrid democracies such as Russia and Turkey, the silencing of the press threatens both liberalism and democracy.
Huq and Ginsburg expand upon the threat of libel lawsuits by describing the overall danger of degrading the public sphere. They believe that state interference in the public exchange of information will lay the bedrock for an anti-democratic government. Libel lawsuits are actively used by hybrid democracies as methods of suppression. Yet, these methods of suppression are approved by the European Court of Human Rights; countries can attack the freedoms of the press and not expect international retribution.
The United States differentiates itself from the libel laws of hybrid democracies in several ways. Historically, the United States has a more stringent application of libel than Russia or Turkey. With the Speech and Debate clause, the United States Constitution outlines the most basic speech rights by allowing legislators to criticize the executive branch without the threat of legal retribution. Further, the US Supreme Court decision in New York Times Co. v. Sullivan established a heightened standard for libel. Varol describes this standard as “a knowing or reckless disregard of the truth,” and the actual malice principle was used to prevent a flurry of libel lawsuits from decimating the press coverage of the Civil Rights movement during the 1960s.
Given President Trump’s recent outburst regarding American libel laws, one might worry that he could actually change such laws. But, only with an overturn of a Supreme Court decision can the libel laws in the United States be amended at a federal level. Furthermore, Trump has no power to enact the libel laws that exist at a state level. And in comparison with the press suppressions taking place in Turkey or Russia, Trump’s outcry about libel laws nowhere near resembles the degradation of the public sphere as mentioned by Huq and Ginsburg.
While Trump poses no legitimate threat to weaponize libel against journalists, he has shown little disregard for attacking news organizations whenever he feels slighted. This contempt for civility does not pose the same legal risks as libel lawsuits but still poses a risk to the perceived legitimacy of the news media. Considering the multitude of tweets, press conferences, and other actions Trump has taken against organizations such as CNN, The New York Times, or the Washington Post, one can easily observe the vitriol that the president holds against such organizations. This very same “fake news” phenomenon has attempted to discredit any story that damages the reputation of the president.
Contrasted with the constitutional and supreme court safeguards in place to protect against libel, no protections are in place to protect against the president or Republican party from posting nonsense such as “The Fake News Awards” on the GOP website. Trump and his fake news banter are problematic. Yet it does not rise to the level of a crisis where the average man must question the sanctity of his civil liberties. The same remains true for Trump’s pledge to reexamine libel laws. While the rhetoric is worrisome, presidential rhetoric cannot overturn a supreme court decision. And at this current moment, the only mechanism President Trump possesses to target the press is his rhetoric. Therefore, the press may have to endure Twitter barrages from the Commander in Chief, but it will not suffer any suppression of its first amendment rights.
*Photo by jp26jp, “Flag USA American Patriot” (Pixabay), Creative Commons Zero license.