So now President Donald Trumps re-election campaign is filing SLAPP suits against news organizations that is, libel suits with no legal merit whose goal is to intimidate rather than to expose the truth.
The lawsuits have targeted The New York Times, The Washington Post and CNN, all of which have the resources to defend themselves. But the Trump campaigns tactics raise a larger question: Will these suits embolden others to weaponize the courts against media outlets that lack the financial wherewithal to fight back against deep-pocketed opponents?
SLAPP stands for strategic lawsuits against public participation. A typical example might involve a developer whos seeking to build a controversial strip mall and who files a frivolous libel suit against neighborhood critics or a small local newspaper in order to silence them. According to the Reporters Committee for Freedom of the Press, 31 states, including Massachusetts, have anti-SLAPP laws aimed at discouraging such suits. There is no federal anti-SLAPP law.
For a president's political operation to sue news organizations for libel is virtually unprecedented but not surprising coming from Trump, who said during the 2016 campaign that he wanted to open up our libel laws so that it would be easier for public figures to collect damages. The lawsuits involve four opinion pieces all of which, as Jacob Gershman notes in The Wall Street Journal, contain passages implying Donald Trump sought or welcomed Russia's intervention in the 2016 presidential election or the 2020 race.
The articles in question were written by Max Frankel, former executive editor of the Times; two Post opinion journalists, Greg Sargent and Paul Waldman; and CNN contributor Larry Noble, a former general counsel at the Federal Election Commission.
Without going into too much detail, the pieces all assert that the Trump campaign had sought help from the Russians during the 2016 campaign and that it appeared to be willing to do so again. (Noble links to an ABC News interview with Trump in which the president all but invited foreign interference in 2020.) Among other things, the Trump campaign cites the Mueller Report as evidence that there was no collusion between the campaign and Russia.
Yet the Frankel commentary was published several weeks before the mostly unredacted version of the Mueller Report was released. Moreover, U.S. District Judge Reggie Walton last week lambasted Attorney General William Barr for mischaracterizing the Mueller Report in his initial summary, writing that Barr had sought to obscure ties between the Trump campaign and Russia as well as multiple episodes of possible obstruction of justice. You could almost say that it sounds like collusion.
As for 2020, the Times recently reported that Russia is attempting once again to help Trump (as well as Bernie Sanders, according to the Post). Trumps indifference and even outright hostility to efforts aimed at curbing that influence could certainly be characterized as welcoming Russian interference.
All this is by way of arguing that the lawsuits are publicity stunts aimed at stirring up the Trumpist base. Not only are they outrageous in and of themselves, but they could also pose a threat to the First Amendment.
Im not a lawyer, but the constitutional principles at issue are well understood. First, there is the fact that the articles in question are opinion pieces. Opinion is protected by the First Amendment. As the Supreme Court put it in Gertz v. Robert Welch (1974), there is no such thing as a false idea. Of course, if you make a defamatory statement about someone that could be proven false, merely labeling it as opinion is no protection, as the court ruled in Milkovich v. Lorain Journal (1990). But the facts laid out in the Mueller Report, as well the Trump interview with ABC News cited by Noble, cut against the Trump campaign's legal argument.
More important, the three news organizations are protected by the 1964 precedent set in New York Times v. Sullivan, in which the court found that public officials would have to prove actual malice in order to win a libel suit; that standard was later extended to public figures as well. Because of the Times decision, the Trump campaign would have to show that the media outlets published the four pieces in question despite knowing or suspecting they were false. (As I wrote last year, Justice Clarence Thomas has said that he would like to weaken the Times v. Sullivan protections. But of course.)
Not only would the Trump campaign find it virtually impossible to prove that the Times, the Post and CNN knew what they were publishing was false there are mountains of evidence to suggest that what they published was true.
In other words, these are the presidential equivalent of SLAPP suits, designed solely to harass and intimidate.
So what is the solution? Judges are strongly encouraged to throw out frivolous libel suits at the earliest possible stage because of the chilling effect that they have on news organizations and others seeking to exercise their First Amendment rights. That is exactly what should happen with the Trump campaigns suits.
More broadly, the suits should serve as a wake-up call. The libel laws are intended as a way for people who have been harmed by false, defamatory statements to obtain compensation. But libel can also be used to silence critics or, in the case of the Times, the Post and CNN to discredit them in the eyes of Trumps supporters.
Not only do the courts need to throw out these suits as quickly as possible; they also must take steps to ensure that the Trump campaigns actions dont trickle down to the state and local levels, which would encourage the widespread abuse of the courts for partisan political advantage.
One possible answer: Passing anti-SLAPP laws in places that dont have them, including the federal courts. And, where necessary, strengthening them to make sure they have real teeth.
WGBH News contributor Dan Kennedys blog, Media Nation, is online at dankennedy.net.
Read this article:
How The Trump Campaign Is Weaponizing Libel And Threatening The First Amendment - wgbh.org
- College sued for stopping students from handing out Constitution - April 26th, 2014 [April 26th, 2014]
- Argument preview: First Amendment protections for public employees subpoenaed testimony - April 26th, 2014 [April 26th, 2014]
- China toughens environment law to target polluters - April 26th, 2014 [April 26th, 2014]
- 1st Amendment - Laws - April 26th, 2014 [April 26th, 2014]
- GBS205 Legal Environment -THE FIRST AMENDMENT - Video - April 26th, 2014 [April 26th, 2014]
- Supreme Court Preview/Review #2 - Video - April 26th, 2014 [April 26th, 2014]
- ConLaw Class 26 - The First Amendment Speech II - Video - April 26th, 2014 [April 26th, 2014]
- Scalia Ginsburg debate NSA and first amendment - Video - April 26th, 2014 [April 26th, 2014]
- Political Correctness vs First Amendment - Video - April 26th, 2014 [April 26th, 2014]
- ConLaw Class 25 - The First Amendment -- Speech I - Video - April 26th, 2014 [April 26th, 2014]
- The First Amendment - Video - April 26th, 2014 [April 26th, 2014]
- [USA] First Amendment abused - Video - April 27th, 2014 [April 27th, 2014]
- Cliven Bundy and the First Amendment - Video - April 27th, 2014 [April 27th, 2014]
- First Amendment Tees Co. Inc. FAT-Tee Intro Video of who we are, and what we stand for - Video - April 27th, 2014 [April 27th, 2014]
- University Attacks First Amendment Costs $50,000 Plus - Video - April 27th, 2014 [April 27th, 2014]
- First Amendment Lawsuit After '8theist' Vanity Plate Denied, 'Baptist' Approved - Video - April 27th, 2014 [April 27th, 2014]
- How A Public Corruption Scandal Became A Fight Over Free Speech - April 28th, 2014 [April 28th, 2014]
- PETITION FOR A WRIT OF CERTIORARI; Crystal Cox v. Obsidian Finance Group - Video - April 28th, 2014 [April 28th, 2014]
- MSNBC: Marjorie Dannenfelser Discusses SBA List First Amendment Case - Video - April 28th, 2014 [April 28th, 2014]
- United Church of Christ sues over North Carolina ban on same-sex marriage - April 29th, 2014 [April 29th, 2014]
- Federal judge: Delayed access to court records raises First Amendment concerns - April 29th, 2014 [April 29th, 2014]
- Justices Troubled By Their Earlier Ruling On Public Employee Speech Rights - April 29th, 2014 [April 29th, 2014]
- Judge Won't Stop Jason Patric from Using Son's Name for Advocacy Purposes - April 29th, 2014 [April 29th, 2014]
- PBL in Journalism I, 2014 - Video - April 29th, 2014 [April 29th, 2014]
- John Dukes on First Amendment - Video - April 29th, 2014 [April 29th, 2014]
- Were Sterlings First Amendment Rights Violated? Nope. - April 30th, 2014 [April 30th, 2014]
- Senate Dems vow vote to change Constitution, block campaign funding - May 1st, 2014 [May 1st, 2014]
- What happened to Sterling was morally wrong - May 1st, 2014 [May 1st, 2014]
- Former Supreme Court Justice Wants to Amend the Constitution - May 1st, 2014 [May 1st, 2014]
- Donald Sterling is my HERO - Video - May 1st, 2014 [May 1st, 2014]
- Retaining Government Power to Make Economic Policy for Internet Access: Role of the First Amendment - Video - May 1st, 2014 [May 1st, 2014]
- America was just defeated from within TODAY 4/29/2014 - Martial law is next - Video - May 1st, 2014 [May 1st, 2014]
- Opposition To Proposed Monitoring Of Hate Speech By Federal Agency The Kelly File - Video - May 1st, 2014 [May 1st, 2014]
- Westfield Mayor to pay $53K in campaign sign violation case - Video - May 1st, 2014 [May 1st, 2014]
- ConLaw 1 Class 27 - The First Amendment - Free Exercise - Video - May 1st, 2014 [May 1st, 2014]
- PEASE: Free speech zones on Bundy Ranch violated First Amendment - May 1st, 2014 [May 1st, 2014]
- Bar Owner Prevails in Buck Foston First Amendment Trial - May 1st, 2014 [May 1st, 2014]
- Was Donald Sterling's First Amendment Right to Free Speech Violated? - Video - May 1st, 2014 [May 1st, 2014]
- First Amendment common sense - May 2nd, 2014 [May 2nd, 2014]
- The First Amendment Doesn't Allow us to Silence Opposition; Get Rid of Limits on Political Speech - Video - May 3rd, 2014 [May 3rd, 2014]
- Save Us Chuck - First Amendment Zones - Video - May 3rd, 2014 [May 3rd, 2014]
- HAROLD PEASE: Free speech zones on Bundy Ranch violated First Amendment - May 4th, 2014 [May 4th, 2014]
- In our opinion: Why government can't tackle hate speech without shredding First Amendment - May 4th, 2014 [May 4th, 2014]
- In our opinion: Can't tackle hate speech without shredding First Amendment - May 4th, 2014 [May 4th, 2014]
- Sen. Ed Markey proposes eliminating free speech - Video - May 4th, 2014 [May 4th, 2014]
- Alabama Chief Justice Stunning Legal Ignorance - Video - May 4th, 2014 [May 4th, 2014]
- Church Uses First Amendment Protections To Perform Same Sex Marriages - Video - May 4th, 2014 [May 4th, 2014]
- first amendment test filming Tucson FBI Headquarters. - Video - May 4th, 2014 [May 4th, 2014]
- "First Amendment ONLY for Christians," Says Alabama Chief Justice Roy Moore - Video - May 5th, 2014 [May 5th, 2014]
- Endangered Speeches - Video - May 5th, 2014 [May 5th, 2014]
- First Amendment Monument Music Video by Daniel Brouse - Video - May 6th, 2014 [May 6th, 2014]
- first amendment rights - Video - May 6th, 2014 [May 6th, 2014]
- News media challenges ban on journalism drones - May 6th, 2014 [May 6th, 2014]
- WHAT FIRST AMENDMENT - Video - May 6th, 2014 [May 6th, 2014]
- Letter: First Amendment rights trampled - May 8th, 2014 [May 8th, 2014]
- News outlets say US drone ban breaches First Amendment - May 8th, 2014 [May 8th, 2014]
- Chucking the First Amendment: Schumers cranky scheme - May 8th, 2014 [May 8th, 2014]
- Screw the First Amendment | We cant let people pray? - Video - May 8th, 2014 [May 8th, 2014]
- Chief Justice: 1st Amendment Only Protects Christians - Video - May 8th, 2014 [May 8th, 2014]
- Inside the Classroom with Professor Leslie Kendrick - Video - May 9th, 2014 [May 9th, 2014]
- 2014 Civics Video Awards First Amendment - Video - May 9th, 2014 [May 9th, 2014]
- .First Amendment protects political speech, not profanity - Video - May 9th, 2014 [May 9th, 2014]
- Charles "Chip" Babcock on Campaign Finance and the First Amendment - Video - May 9th, 2014 [May 9th, 2014]
- A First Amendment attack on Assembly... in George Washington - May 9th, 2014 [May 9th, 2014]
- SUPREME STUPIDITY Kills The First Amendment - RIP Separation of Church & State (1787-2014) - Video - May 10th, 2014 [May 10th, 2014]
- FBI Agents Harass Photographer: First Amendment Test - Video - May 10th, 2014 [May 10th, 2014]
- History Project: First Amendment. - Video - May 10th, 2014 [May 10th, 2014]
- SDG&E Challenges The First Amendment and Loses - Video - May 11th, 2014 [May 11th, 2014]
- Richmond City Council Uses Tricks to Undermine First Amendment - Video - May 11th, 2014 [May 11th, 2014]
- Their opinion: Disagreeing on the First Amendment - May 12th, 2014 [May 12th, 2014]
- The Clash Between the First Amendment and National Security in Times of War Symposium - Video - May 12th, 2014 [May 12th, 2014]
- City Charter amendment passes 581-556 - May 15th, 2014 [May 15th, 2014]
- David Allen Legal Tuesday: Flashing Automobile Lights and the First Amendment - Video - May 15th, 2014 [May 15th, 2014]
- Senator Chuck Schumer is against the First Amendment then and now - Video - May 15th, 2014 [May 15th, 2014]
- Facebook SUCKS! - Video - May 15th, 2014 [May 15th, 2014]
- Dems threaten Kochs with a constitutional amendment - May 16th, 2014 [May 16th, 2014]
- Reid backs campaign spending limit - May 16th, 2014 [May 16th, 2014]
- Tennessee Boy Recites First Amendment Rights After Being Told to Put Away His Bible - Video - May 16th, 2014 [May 16th, 2014]
- 'Shutup,' they explained Crippling the First Amendment - May 18th, 2014 [May 18th, 2014]
- Reid Seeks To Change First Amendment To Stop Koch Brothers - Video - May 18th, 2014 [May 18th, 2014]