Donald Trump and libel litigation

Presidential candidate Donald Trump, speaking today: “We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.” Trump also said of Amazon, whose Jeff Bezos owns the Washington Post, a newspaper that just ran an editorial seeking to rally opposition to Trump: “If I become president, oh do they have problems. They’re going to have such problems.”

The President has no direct power to change libel law, which consists of state law constrained by constitutional law as laid out by the Supreme Court in New York Times v. Sullivan. A President could appoint Justices intent on overturning the press protections of Sullivan or promote a constitutional amendment to overturn it. Assuming one or the other eventually was made to happen, further changes in libel law would probably require action at the state level, short of some novel attempt to create a federal cause of action for defamation.

But although Trump is unlikely to obtain the exact set of changes he outlines, the outburst is psychologically revealing. Donald Trump has been filing and threatening lawsuits to shut up critics and adversaries over the whole course of his career. He dragged reporter Tim O’Brien through years of litigation over a relatively favorable Trump biography that assigned a lower valuation to his net worth than he thought it should have. He sued the Chicago Tribune’s architecture critic over a piece arguing that a planned Trump skyscraper in lower Manhattan would be “one of the silliest things” that could be built in the city. He used the threat of litigation to get an investment firm to fire an analyst who correctly predicted that the Taj Mahal casino would not be a financial success. He sued comedian Bill Maher over a joke.

I have been writing about the evils of litigation for something like 30 years, and following the litigious exploits of Donald Trump for very nearly that long. I think it very plausible to expect that if he were elected President, he would bring to the White House the same spirit of litigiousness he has so often shown as a public figure. (cross-posted at Cato at Liberty)

P.S. Also reprinted at Newsweek. And Ilya Somin cites further elements forming a pattern: Trump has expressed his wish to “have the FCC take some of his critics off the airwaves” and his regret that protesters at his events could not be dealt with in such a way that they “have to be carried out on a stretcher.” He also writes that should Trump proceed to appoint judges who strongly share his view of libel law, those judges “are unlikely to effectively protect other important speech rights and civil liberties.” And a late-January post from Patterico recalls Trump threats against the Washington Post (again), John Kasich, a t-shirt company, and a Jeb Bush PAC, to which might be added the Club for Growth, reporter Tim Mak, Scotland, Univision, and many more. Yet more: Mike Masnick, TechDirt.


  • Thank You Mr. Trump we so need you in the White House!!!! TRUMP 2016 ALL THE WAY! ! !

    • Yes, dear readers, even the LIV has free speech… for now…

      Just about EVERYthing Trump says is cause for concern, if downright frightening. He thinks that once he’s the POTUS he can order all these things to happen that HE wants to happen, but given his ego he is NOT going to want to work with anybody.

      This reminds me of the sitting (p)Resident.

      If it weren’t for Daddy’s money and pulling him out of the fire on several occasions, he’d be penniless and unnoticed.

  • ^ Troll?

    I generally expect a more cohesive and considered response to postings here, agree or disagree.

    For my own part, I think the best response to speech we don’t like is more speech, not more litigation. I’m speaking out against D Trump, and will soon be voting my preferences for our next POTUS.

    JONI, I’m voting against you.

  • U r right. expect Donnie to behave and act like Barky O: dictatorially. Wasn’t it Barky O that tried to rein in talk radio?

  • I am somewhat at odds with this suggestion. I understand the need for protection of our news sources, but when the “journo-list” becomes a protector and mouthpiece for one party all the time, I begin to wonder whether the media have failed in their Constitutional assignment, and how to encourage t hem to get back to work.

  • All Donald Trump needs to do to fulfill this promise is to file a successful libel suit against the Washington Post and thereby complete the work William Tavoulareas began in TAVOULAREAS v. PIRO 817 F.2d 762 (D.C. Cir. 1987).

    Measure today’s Washington Post reporters against Ben Bradlee’s demands.

  • Excuse me? Trump can sue for libel when someone disagrees with him – but he can call people names & assassinate their character with impunity? We would have a President who doesn’t believe in freedom of speech! How can anyone even consider voting for someone who thinks like this?

  • Mr. Olson,

    I am a longtime reader of your blog but this post has prompted me to comment. The media are constantly lying about Trump. Just today, some KKK guy came out and said he supported Trump. Jake Tapper asked Trump about the endorsement, and he said he didn’t know about it, end of story. Well, CNN spun this as “Donald Trump supports the KKK” and every other candidate glommed onto it. Obviously, Donald is not a Klan supporter and Tapper knows this. But he lied anyway. Even if Trump did not end up prevailing in a defamation suit against CNN and Tapper, it is clear to me that his case would not be frivolous. It is also clear that this happens to him on a daily basis, as anyone following this presidential race can attest.

    This is why I am supporting Trump. Trump has 10 billion dollars? Billionaire class oligarch! Jeff Bezos has 54 billion? Ha-ha, Trump is a bad businessman because he has less money than Bezos! This kind of rhetoric is coming from the mainstream press, the CNNs, NYTs, and WaPos.

    You clearly fear for the First Amendment if Trump is elected. I fear for it if Trump is NOT elected. Look what happened to Ben Shapiro of Breitbart when he went to speak at CSU Los Angeles. A man, prevented from speaking and then assaulted by the government, for speaking words the government does not like.

    The threat to free speech does not come from Trump or any hypothetical future executive actions. It comes from local police departments, colleges, and, yes, the media — for setting the tone.


    Underemployed Lawyer

    • Schwifty,

      As the old saying goes, you are entitled to your opinion, but you are not entitled to your own set of facts.

      Trump did not say “he did not know about it.” Even if he did not know about the endorsement, is Trump that ridiculous to not even say that racists like Duke and racist organizations like the KKK should be be disavowed?

      Here is the exchange between Jake Tapper and Trump that started the mess:

      TAPPER: I want to ask you about the Anti-Defamation League, which this week called on you to publicly condemn unequivocally the racism of former KKK grand wizard David Duke, who recently said that voting against you at this point would be treason to your heritage. Will you unequivocally condemn David Duke and say that you don’t want his vote or that of other white supremacists in this election?

      TRUMP: Well, just so you understand, I don’t know anything about David Duke. OK? I don’t know anything about what you’re even talking about with white supremacy or white supremacists. So I don’t know. I don’t know, did he endorse me or what’s going on, because, you know, I know nothing about David Duke. I know nothing about white supremacists. And so you’re asking me a question that I’m supposed to be talking about people that I know nothing about.

      TAPPER: Would you say unequivocally that you condemn them and you don’t want their support?

      TRUMP: Well, I have to look at the group. I mean, I don’t know what group you’re talking about. You wouldn’t want me to condemn a group that I know nothing about. I would have to look. If you would send me a list of the groups, I will do research on them. And certainly, I would disavow if I thought there was something wrong.

      TAPPER: The Ku Klux Klan?

      TRUMP: But you may have groups in there that are totally fine, and it would be very unfair. So give me a list of the groups, and I will let you know.

      TAPPER: OK. I mean, I’m just talking about David Duke and the Ku Klux Klan here, but…

      TRUMP: I don’t know any – honestly, I don’t know David Duke. I don’t believe I have ever met him. I’m pretty sure I didn’t meet him. And I just don’t know anything about him.

      First, Trump doesn’t know anything about the KKK? Did he fail 3rd grade history?

      Secondly, when Trump ran for president in 2000, he refused to run under the “Reform Party.” He said at the time and repeated again yesterday that he didn’t run under the Reform Party because David Duke was a member. That was the reason he gave.

      So which is true? Is Trump’s statement disavowing Duke in 2000 accurate? Or is his statement with Tapper that he doesn’t know anything about Duke or the KKK accurate?

      Both cannot be true.

      Also, Shapiro was allowed to speak at the University of California. Students tried to disrupt the speech, but the speech went on to a packed house. Shapiro was not “assaulted” by the government or the police and in fact it was the police who protected him as he left the engagement. It is also of interest that Shapiro doesn’t support Trump at all.


      Trump has a history of fliopflopping. Even his book “Art of the Deal” says he says what he says to gain support and will change depending on the audience. Trump has a history of suing people with whom he disagrees.

      Trump and the Clintons have a lot in common when it comes to their responses to people who disagree with them. The commonality is not a good thing for anyone on either side of the political aisle.

      • Again, this is why I personally back Trump. I responded with a very respectful statement, and you come out and insult me.

        Go back and read what you quoted:

        “I don’t know anything about what you’re even talking about with white supremacy or white supremacists. So I don’t know. I don’t know.”

        He’s saying he did not know about the endorsement. The media then spun that as “Trump supports the KKK,” which was obviously not true. Donald Trump cannot control who supports him. The lying media did the same thing to Reagan in 1980 and Ron Paul in 2008 and 2012.

        Furthermore, I never stated the police assaulted Shapiro. I said the government did. The government entity in question is CSU Los Angeles.

        Here is the article where he details what happened:

        If you watch the video, people are putting their hands on him. That is assault.

        Several others were also assualted.

        Also, please comment on the screengrab of a left-wing student’s Instragram feed wherein the student complains about “whites” on campus who wanted to hear Shapiro speak. Who is the real racist here?

        Also, Shapio’s non-support of Trump is not relevant.

        • Schwifty,

          I am sorry if you took a factual statement on facts vs opinions as an insult.

          As for the Cal State incident, once again neither the government nor the police assaulted or touched Shapiro. The videos you want me to watch and even Shapiro’s own article never make that claim. Students are not the government.

          But as this thread is about Trump’s use of litigation to silence or force people to do what he wants, it should be noted that Trump lied in the last debate when he claimed most of the lawsuit concerning Trump University had been dismissed. It has not.

          Furthermore, I hope you will take the time to look at Trump’s lawsuit against Palm Beach in the mid-2000s. Stung by a legally enacted regulation over the height of a flag pole, Trump sued the city and nearly bankrupted it. Trump once again showed the desire to use litigation to overrule laws and regulations, as well as harm a city over a flag pole. Eventually, Trump and the city settled, but the suit shows that Trump will sue to get what he wants at the costs of thousands of actual citizens of a town, as well as sue those who disagree with him.

          • The school (which is the government) ratified the conduct of the students. Further, the dean told the speaker he could not come to campus to give his speech, in violation of the First Amendment.

            I am not defending every Trump lawsuit. But in the week or so since this post, there have been three violent assaults on Trump supporters, and rioters (backed by communist Bernie Sanders) shut down Trump’s Chicago rally.

            Trump will be better for the First Amendment than any of the other candidates, by a wide margin.

    • The question was never if Trump is a Klan supporter. He most certainly is not. The question is whether he had the instict to pander to racists because it would help him get votes leading up to Super Tuesday. The question is whether he pretended not to know David Duke where there is litle question he knew exactly who he is.

      The idea that a lawsuit against CNN and Jake Tapper would not be frivolous is a stunning statement to me. You are lawyer? How would that complaint look exactly?

      You say you are longtime reader of this blog? What exactly do you like about it that brings you back?

      Your Ben Shapiro spin is interesting. So you think the government physically attacked him for his views?

      Trump has been a very successful businessman. Of course, he could have put his Dad’s money in the S&P 500, gone to a deserted beach, and a little bit better. Jeff Bezos, since you mentioned him, had a teenage mother and grew up poor.

      All that said, I understand liking Trump. I find him entertaining. I’m just not sure what in his resume qualifies him to be president.

      • >”The idea that a lawsuit against CNN and Jake Tapper would not be frivolous is a stunning statement to me.”

        Heh, nice insult.

        >”You are lawyer?”

        I already stated in my original post that I am licensed to practice law. Is this an attempt at trolling. Is this how you interact with opposing counsel? You should apologize.

        Trump said he did not know about the endorsement. The media then spun that as “Trump supports the KKK,” which was obviously not true. Donald Trump cannot control who supports him. The lying media did the same thing to Reagan in 1980 and Ron Paul in 2008 and 2012.

        >”Your Ben Shapiro spin is interesting. So you think the government physically attacked him for his views?”

        Go watch the videos he posted in his article covering the incident. He himself is also claiming there were assaults.

        >”You say you are longtime reader of this blog? What exactly do you like about it that brings you back?”

        Let me answer that by asking you this: What prompted you to respond to my defense of Donald Trump as a defender of free speech rather than a menace to it, with insults?

        Hey, you aren’t this guy, are you?

  • Trump as defender of freedom? More like a petty tyrant who would issue edicts and petulant threats. It is interesting how many he has bamboozled into thinking he’s anything other than a brat. His election would interest me solely in that I think we might see the first concerted effort in a very long time to reduce and constrain presidential power by Congress.

  • During one of the recent debates, something Trump said I thought was very telling.
    Jeb Bush was talking and Trump interrupted him to state that ” the twin Towers came down in your brothers reign,” Trump would consider the Presidency like a Monarchy where the King reigns or his subjects. I think that is how his mind works. You can construe from his bullying statements that he thinks he will get his way with any matter. Unfortunately for him, we are a democracy.

  • I have been following this blog for several years and I have never seen such an argumentative and obnoxious poster here as “Schwifty.”

    Will that be the new standard under President Trump?

    • I was very respectful, I did not call anyone a name. I simply pointed out how the left is trying to shut down speech they do not like, and that Donald will bring a much needed change in tone. What was “argumentative” and “obnoxious” about my asserting that Donald Trump will be better for the First Amendment than any other candidate? All you have is insults. Keep hiding behind your screen.

  • This thread has indeed grown contentious and has also strayed a fair distance away from its original post. Further comments, if any, should be on topic and avoid dealing in personalities of other commenters, especially when they are identifiable persons. Legal and policy discussions inevitably touch on politics in an election year, but ours is not a venue well suited to general political debate (and there are thousands of other venues better suited to that function).

  • […] recently as two weeks ago we covered Republican front-runner Donald Trump’s pattern of suing his critics. But the […]

  • […] – Overlawyered […]

  • It has been reported that Donald Trump has been involved in over 150 federal lawsuits in the course of his career, many are utterly frivolous (I’m not sure whether this counts his numerous threats of suits that he never files). While it’s reasonable to expect some litigation when running a large enough company for so many years, it’s hard to believe that you aren’t doing it wrong if you find the need to run to court that often. It would seem that he is the poster child of “Overlawyered.”