The Trump administration can look all it wants, there is next to no chance it will ever be able to open up U. S. libel laws.
The White House has “looked at” changing U. S. libel laws, according to Chief of Staff Reince Priebus. Appearing on ABC’s This Week on Sunday, Priebus was asked by White House correspondent Jonathan Karl if President Trump, after repeatedly suggesting U. S. libel laws should be changed, would actually pursue that course of action. “I think it’s something that we’ ve looked at and how that gets executed or whether that goes anywhere is a different story, ” Priebus responded. Pressed on whether or not President Trump should be legally able to sue media organizations like the New York Times over their reporting, Priebus just repeated his earlier answer, adding that “I think that newspapers and news agencies need to be more responsible with how they report the news.” Priebus’s remarks also came the morning after President Trump and his staff skipped the annual White House Correspondents’ Dinner in order to hold a campaign-style rally in which the president spent a great deal of time attacking the press he was avoiding.
In March, Trump tweet-suggested that libel laws be changed following yet another complaint about negative coverage of his administration, and at a campaign rally early last year, Trump promised supporters that, “I’ m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”
It’s not clear how seriously anyone should take Trump or Priebus’s remarks, but if the White House wants to try and open up U. S. libel laws, the odds of that effort being successful are essentially zero. There is no federal libel law, and existing libel laws are defined by state courts and legislatures. That means that there is no one law to change, to begin with. In addition, state laws are limited by a 1964 Supreme Court decision that public officials and public figures who want to sue a news organization for libel would have to prove that false information was knowingly published with malicious intent against them. They would also have to prove that the news organization damaged their character or reputation. Neither allegation is easy to prove.
So whether or not the White House has actually looked at changing libel laws as Priebus claims, there’s no getting around the fact that they would either need to spearhead a change to the U. S. Constitution or get the Supreme Court to overturn the 1964 ruling. Any change to the Constitution which alters the language of the First Amendment is likely impossible in the current political environment, and for the Court route, Trump would have to have both the opportunity and ability to appoint new Justices who would vote to overturn the 1964 ruling. Even newly-Trump-appointed Supreme Court Justice Neil Gorsuch didn’ t seem willing to challenge the 1964 decision when asked about it during his confirmation hearings.
In other words, no, President Trump will almost certainly not be able to change U. S. libel laws, regardless of what he or anyone else says.
