Trump’s CNN Lawsuit Shows Freedom of Press Does Not Include Right to Libel

October 13, 2022

Carson Holloway

Washington Fellow

It’s an opportunity for the Supreme Court to right wrongs that enable our shameless Fourth Estate.

This essay was originally published on October 6, 2022 by The American Spectator.

Former President Donald J. Trump is suing CNN for defamation. For those who know something about modern American libel standards, the case raises the following question: Will Trump be able to show “actual malice”? That is, will he be able to show not only that CNN defamed him through false reporting but that it did so with the knowledge that its reports were false, or at least with “reckless disregard” for whether or not they were true ? This is the high standard that a public figure like Trump must meet in order to sue successfully for libel in an American court.

Trump’s case also raises a deeper question about American law: Should Trump — or any other public figure — be required to show “actual malice” to prevail in a libel suit? As I argue at greater length here, the answer to this question is “no.” The actual malice standard is not really a requirement of the First Amendment. It is instead an extra-constitutional novelty imposed on our understanding of the freedom of the press by an activist Supreme Court.

Modern American libel law has been decisively shaped by the Supreme Court’s 1964 ruling in New York Times Co. v. Sullivan. Here the court took a perfectly reasonable ruling and used it as the vehicle to graft an unreasonable and non-constitutional standard onto our law. L.B. Sullivan — a city commissioner of Montgomery, Alabama — deserved to lose his libel action because he could not show that he had been defamed by an ad critical of him that had been written by civil rights activists and published by the New York Times. The ad had not even named Sullivan.

The Court, however, not content to deprive Sullivan of his improper victory in the courts of Alabama, went further. It declared, with Justice William Brennan Jr. writing for his colleagues, that henceforward “public officials” would be held to a standard different from that of ordinary litigants when suing for libel. Public officials would have to show not only that they had been defamed by false publication. They also would have to show that the publisher had acted with “actual malice” — that is, again, with knowledge that the story was untrue or with reckless disregard for its truth or falsity. Subsequent rulings extended the doctrine so that today not only “public officials” but also “public figures” — practically any well-known person — must show actual malice to sue successfully. This doctrine, the Court has suggested, is necessary in order to protect the freedom of debate and criticism that the First Amendment aims to secure.

The claim that the First Amendment requires a showing of “actual malice” in certain libel cases is the work of the Warren Court and is the kind of bold (some might say reckless) innovation for which it was famous (some might say infamous). The older approach to American libel law recognized no distinction between the standards to be applied to ordinary citizens, on the one hand, and public figures, on the other. It treated the rights of reputation of all Americans as equally worthy of protection. It held simply that libel was a wrong, an injury to another, and, therefore, not part of the freedom of the press.

The older approach to American libel law recognized no distinction between the standards to be applied to ordinary citizens, on the one hand, and public figures, on the other. It treated the rights of reputation of all Americans as equally worthy of protection.

The traditional understanding was well expressed by Justice Frank Murphy in Chaplinsky v. New Hampshire (1942). Said Murphy: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting” (emphasis mine). Murphy’s understanding can be traced all the way back to our nation’s founding. The great legal commentators among the Founding Fathers — men like James Kent, Justice James Wilson, and Justice Joseph Story — all held that libel, or false and defamatory speech, was properly regarded as an injury, subject to legal action, and not part of the freedom of the press.

New York Times v. Sullivan worked a serious change not only in American legal doctrine but also in the practice of American self-government. Under the traditional standards, public figures could and did sue successfully when they were libeled by the press. The press was then subject to a wholesome legal restraint. It could criticize public figures in as cutting a manner as it liked — so long as the criticism was truthful. Since the imposition of the actual malice standard, however, it has proven almost impossible for public figures to sue the press successfully, even in cases — such as recent former Alaska Gov. Sarah Palin’s suit against the New York Times — in which the publisher admits that the defamatory information was erroneous. Not surprisingly, the modern American press, blessed with this almost perfect legal impunity, has become increasingly careless of the truth.

Today’s Supreme Court should use cases like Trump’s to revisit New York Times v. Sullivan and restore our nation’s traditional libel standards. This is necessary not just for the sake of public figures whose reputations have been unjustly damaged by the press, and not just for the sake of getting the Constitution right — although those are certainly important considerations. It is also necessary for the preservation of genuine self-government.

Self-government — a core promise of the American way of life — means that the people get to decide the basic direction of the country by electing their political leaders. For this to be a serious process and not a farce, the voters must be able to give genuine, informed consent to the election of those who make the laws and administer the government. This in turn requires that they have access to accurate information about those contending for office and an opportunity to think through the alternatives with which they are confronted. A responsible press has an essential role to play in this process.

As we are seeing, however, an irresponsible, partisan press can derail our process of self-government. Such a press seeks not to assist the people’s deliberations but instead to shape political outcomes by using slander to render some leaders and some movements odious to the public. This, after all, is what was attempted in 2016 with candidate Trump. Those who publicized the false claim that Trump was guilty of “Russian collusion” did so precisely because they feared that the issues on which he was running might be sufficiently powerful to secure him the presidency. That attempt failed in 2016, but it was used with some success thereafter to impede Trump’s ability to govern. And the press’s brutalization of Trump is only one example.

Politics in a mass democracy such as our own will never display the lofty rationality of a Platonic dialogue. In modern times it may not even rise to the level of the Lincoln–Douglas debates. But there is no reason that it has to be the absolute circus that it has become. The Supreme Court helped to cause this problem and it can help to fix it — by reversing New York Times v. Sullivan.