President Trump’s reelection campaign sued the New York Times in February for libel over an article published in the paper’s Opinion section. The article, written by Max Frankel and entitled “The Real Trump-Russia Quid Pro Quo,” describes President Trump’s alleged interactions with Russian during his initial election campaign and alleged collusion with Russia to take down Hilary Clinton.
The lawsuit claims one cause of action for defamation against the newspaper. The complaint claims the article contains at least five false statements of fact concerning President Trump’s election campaign. The campaign claims the false statements damaged President Trump’s reelection campaign and caused it millions of dollars in damages. The lawsuit also acknowledges that President Trump is a public figure and claims that Mr. Frankel wrote the article with actual malice or reckless disregard for the rights of the campaign.
These terms, public figure and actual malice, are important because of the broad protection that the Constitution provides to protect the press from defamation lawsuits.
What are Libel Laws?
Libel is a form of defamation. Libel is defined as a written defamatory statement, meaning a false statement of fact, which harms a person’s reputation or exposes a person to ridicule. Defamation can also be spoken, which is called slander. Libel per se is a written statement that falsely charges someone with a serious crime or states false facts that would injure a plaintiff in his or her business or profession.
To win a defamation case, a plaintiff must prove four things: 1. The Defendant made a false statement claiming to be a fact, 2. Which was published to a third person, 3. That the statement was not privileged (meaning it was not made in a setting where false statements are protected), and 4. He or she suffered damage resulting from the publication.
The goal of libel laws, and defamation laws in general, is to protect people’s reputations and ensure that publications are fact-checked before potentially damaging, false information is published. As seen in the age of the Internet, once a false fact is published, it is impossible to delete it from the public domain and the minds of the recipients.
Traditionally under state law, a plaintiff did not need prove he or she suffered damages as a result of a defamatory statement. Damages would be presumed. A plaintiff would prevail if he or she proved the defendant made a false statement of fact that was published to a third party.
However, defamation law developed significantly over the last century in order to balance the competing interests of personal reputation with the constitutionally protected First Amendment rights of freedom of speech and of the press.
Public Figure versus Private Figure
Whether a plaintiff is a public figure or a private figure makes a difference in what a plaintiff needs to prove to win a lawsuit. A private figure usually only has to prove the above elements in order to prevail in a lawsuit.
In 1964, the Supreme Court decided New York Times v. Sullivan. In that case, the Court made a distinction between private persons and public officials and issues involving matters of public concern. The Supreme Court held in Sullivan that a plaintiff who is a public official and who sues for defamation on an issue of public concern must prove the defendant acted with actual malice.
This case was monumental because the Court made a distinction between regular people and well-known public figures. This distinction has since been expanded to different types of public figures. A public figure is someone who has pervasive power and influence in society, and includes professional athletes, celebrities, and those people who are involuntarily thrust into the public spotlight (someone like Scott Peterson or Steven Avery).
Actual malice means that a statement was published with knowledge it was false or with reckless disregard for its truthfulness. Actual malice must be proven by a plaintiff by clear and convincing evidence, which is higher than the normal standard of proof in civil court of preponderance of the evidence.
This development is important for several reasons.
First, it added an additional hurdle that a public figure such as President Trump must prove in order to win a defamation lawsuit. President Trump, for example, has to prove that Mr. Frankel knew the statements he published were false or recklessly disregarded whether they were true or false. Proving the mindset of the publisher is a difficult task for any plaintiff.
Second, it created a layer of constitutional analysis to defamation lawsuits on a national level. In addition to each state’s defamation law, state courts now have to apply additional constitutional tests to lawsuits. Sullivan also triggered the ongoing development of this are of the law, leading to other key court cases over the next twenty years. Such cases in include Gertz v. Robert Welch, Inc. in 1974 and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985).
Third and perhaps most importantly, New York Times Co. v. Sullivan was a huge win for the news media and free speech rights. The Court’s decision protected the media’s right to comment and criticize public officials for their conduct while carrying out their official duties. Criticism of public officials is key to our democracy—it keeps public officials accountable and notifies the public when officials abuse power or run afoul of the law. The Court’s decision established that robust comment on public matters is key to our democracy.
Defenses to Defamation
A defendant has several defenses available when sued for defamation. The main defense is that the published statements are true. Here, if Mr. Frankel shows he relied on true facts in writing his article, President Trump’s campaign will not prevail.
Another defense is that Mr. Frankel did not publish information purporting to be facts. Opinions are generally not actionable—only statements of fact.
Other defenses include qualified and absolute privilege. A qualified privilege allows for free communication in certain relationships so that the speaker is protected from a defamation lawsuit so long as he or she has taken steps to verify accurate information. An example of this includes an employer giving a reference for a former employee.
Absolute privilege is a complete defense and gives the speaker immunity from a defamation lawsuit. Examples of absolutely privileged statements are statements made by judges, witnesses, or parties in a court proceeding. This is a powerful defense because someone with absolute privilege can say whatever they want, no matter if the statement is true or not.
President Trump’s Odds of Success
President Trump’s re-election campaign faces big hurdles before it can prevail in this lawsuit. Because President Trump is the best-known public figure in the world, his campaign has to prove actual malice—that Mr. Frankel knew he published false facts in his article or published the facts with reckless disregard for whether they were true or not. The lawsuit claims that the article is false in light of Special Counsel Robert Mueller’s findings in his report of no conspiracy between the initial campaign and Russia.
This will be difficult in part because Mr. Frankel’s article is an opinion piece. The article is highly critical of President Trump. It appears to rely on facts within the public knowledge and the author’s own opinions concerning those facts. Expressions of opinion are, by definition, not actionable under defamation laws.
Another hurdle the re-election campaign faces is the strong public policy in favor of freedom of the press. The issue of President Trump’s interactions with foreign governments during his election campaign has been a topic of public concern since his election. It is the biggest political issue surrounding President Trump’s presidency. Thus, the New York state court will likely be reluctant to support a decision that would silence the news media, especially on the topic of foreign interference in our democracy.