Free speech roundup

  • Tomorrow (Tues., Dec. 6) Cato Digital presents panel discussion “Free Speech in the Age of Trump” with Flemming Rose, Nick Gillespie, and Kat Murti [register or watch live online]
  • Eventually, Supreme Court will have to consider a First Amendment challenge to cyberbullying laws [ABA Journal]
  • Tactical use of libel suits cries out for remedy, but some remedies that are being proposed are hard to square with federalism [Sasha Moss, R Street]
  • Bill pending in Congress to protect consumer reviews (Yelp, etc.) would allow special restrictions on speech “inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic” which could prove an ominous precedent [Eugene Volokh]
  • Is there a prospect for sanctions should Donald Trump sue the press for defamation? [Eric Turkewitz, pre-election if that matters]
  • Count the ways: “The government has double standards about freedom of speech” [Hans Bader]


  • President-Elect Trump has no need to sue the press; his destruction of their arrogated superiority is sufficient punishment. However, your question – and the Turkewitz article – implies that somehow Sullivan does not apply to presidential candidates.

    However, there are many others who seem to have strong grounds for defamation suits: Steve Bannon comes to mind immediately. It seems that in his case, the Sullivan standards have been ignored, violated, and trampled into the mud.

    • >your question – and the Turkewitz article – implies that somehow Sullivan does not apply to presidential candidates.

      I have no idea what this means. Sullivan recognizes a category of public figures, but it does not bar defamation suits by them, even if it holds them to a more demanding standard than it does private figures; a winning or losing presidential candidate, White House adviser, or other public figure can sue under Sullivan and under some circumstances win.

      I also think the phrase “his destruction of their arrogated superiority” begs about three separate questions, but that’s not a legal question, so let that pass.

      • Precisely. Under Sullivan, why should Trump be subject to sanctions for suing the press for defamation? This would appear to be a legitimate suit. Indeed, it should not be difficult for him to prove malice.

        So why does Turkewitz claim that such a suit would be subject to sanctions?

        Unless, by sanctions, you mean that the Supreme Court would sanction – i.e., approve – such a suit.

        Or is there something I’m missing here?

        • “This would appear to be a legitimate suit.” You show great confidence in the merits of this still-unfiled action. In a suit by Trump, as in any other defamation suit filed by a public figure, three outcomes are readily imaginable: plaintiff wins, defendant wins but case is colorable enough not to trigger sanctions, and defendant wins and court further determines that plaintiff filed it without a reasonable basis or otherwise in violation of a state anti-SLAPP statute. If you are right that Trump’s case will pose no particular difficulties of proof even under the Sullivan public figure threshold of actual malice, well, then, being headed toward victory on the merits he needn’t worry about sanctions. I think Turkewitz is raising the possibility that a judge will not view the merits as favorably as you do, and if not, a sanctions issue might arise.

          We do know from Trump’s own mouth that he has filed defamation suits from motives other than an expectation of victory at trial. To quote a report from March, Trump “said in an interview that he knew he couldn’t win the suit [against biographer Timothy O’Brien] but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.” (reference: )