Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Habib Olapade
Habib Olapade is a first-year law student at Yale University.
Article II §1 of the Constitution requires the President-elect to take an oath that she or he will “preserve, protect and defend” the document before entering the Oval Office.  This precondition implicitly assumes that the oathkeeper has read the constitution (which is only about 4,500 words) or at the very least has attained a basic understanding of its content and structure. Based on comments he has made about libel laws throughout his campaign, and brief tenure in office, Donald J. Trump has done neither.
On February 26, 2016, speaking at a rally in Fort Worth, Texas, Trump promised that if elected, he would “open up our libel laws so that when [the press] write[s] purposefully negative…articles, we can sue them and win lots of money.”  Mr. Trump, to his credit, has backed up this vow by threatening to sue the New York Times for publishing an article detailing two women’s allegations that he kissed and groped them without their permission.  Trump’s lawyers claim that the New York Times article is “reckless, defamatory, and libelous per se,” and was published with flagrant disregard for the truth.  If these allegations were true, Trump could collect compensatory (but not punitive) damages in a libel suit against the Times. 
The problem, though, is that these charges are patently false. What’s more, they reveal Mr. Trump’s depressing ignorance of basic First Amendment principles.
The First Amendment states, in part, that “Congress shall make no law…abridging freedom of speech or of the press.”  This limit applies to the states through the Fourteenth Amendment’s due process clause.  Together, the free speech and press clauses prevent state governments and municipalities from passing libel laws punishing speech about public figures simply because it is false or arouses intense emotions and debate.  Moreover, political utterances are core First Amendment speech because debate on public issues must be uninhibited and robust so that the interchange of ideas brings about political change desired by the people. Most erroneous or defamatory statements about public figures, even if they are devoid of value, must be protected if there is to be enough “breathing room” to allow individuals to speak freely on public matters.  Otherwise, reporters and speakers will engage in self-censorship in order to avoid costly civil suits and the public will lose the opportunity to hear arguments it would have otherwise heard.
Accordingly, the Supreme Court, in recognition of this reality, has held that statements about public figures such as Mr. Trump are not libelous unless it can be shown that the statements were made with “actual malice,” or were published with either (1) knowledge that they were false or (2) reckless disregard for whether they were true or false.  In practice, the actual malice standard is quite demanding because a plaintiff must inquire into a publisher’s intent in order to make her case. Unsurprisingly, it can be very difficult to prove someone’s state of mind in the absence of a smoking gun. Private individuals outside the public eye, on the other hand, can bring successful libel claims under a standard less onerous than strict liability.
Mr. Trump’s lawyers press three arguments. First, they assert that the New York Times published the article knowing that its contents were false. Second, they claim that the Times editorial staff did not investigate the story sufficiently before publication. Finally, they insist that Mr. Trump is not a public figure, and, therefore, is not bound by the actual malice standard.
All of these assertions fall flat. Given the totality of circumstances, the Times staff had no reason to suspect that the two assault allegations were false. Mr. Trump has been recorded calling women “fat pigs, slobs, and disgusting animals,” and, at the time of publication, numerous other women had reported receiving unwanted advances from him.  Temple McDowell, a former Miss USA contestant, stated that Trump “turned to me…and gave me a kiss on the lips” upon meeting her for the first time.  Mindy McGillivray, a Mar-a-Lago camera agent, claims that our President “groped her close to the center of her” buttock at a Ray Charles concert reception.  Finally, an audio recording from 2005 reveals a private conversation between Billy Bush and Trump wherein the latter confessed that he felt at liberty to “just start kissing women” during first encounters and grab them by the genitals.  To be sure, the past occurrence of a phenomenon is not enough to prove that it will occur in the future. History does tend to repeat itself, however, and the Times’ adherence to this adage is not enough to prove actual malice.
Nor is there any indication that Times reporters published the article with reckless disregard for the truth by failing to exercise due diligence in investigating the story and fact checking sources. All that remains, therefore, is the public figure argument.
If Donald J. Trump, is not a public figure, it is hard to conceive of someone who is. Under prevailing precedent, a public figure is someone who “has assumed a prominent role in societal affairs by thrusting themselves to the forefront of a controversy.”  On the very first day of his campaign, Mr. Trump stated that he was voluntarily surrendering the pleasures of an affluent private life in order to “make America great again” by seeking the Republican Party’s nomination for President of the United States.  But even assuming, arguendo, that Mr. Trump had decided to never enter politics in the first place, his major real estate dealings, television appearances, and recent inauguration are more than enough to establish his status as an apple, albeit a rotten one, of the public’s eye.
The Constitution is not a lawyer’s document. Our understandings of its provisions are informed by our choices at the ballot box.  It is possible, but very doubtful, that Donald Trump’s rise may be attributable in part to changing populist attitudes about state libel laws. Trump’s comments, if interpreted charitably, assume that he knows that current libel laws would not allow the maintenance of civil actions he would like to see in the future. It is very hard, however, to take this line of argument seriously when Trump also goes around claiming that he will uphold all twelve articles of the constitution (there are only seven) and ban all members of a major religion from entering the country.  This is why it is so hard for the Republican legal elite to back him. The very concept of limited government is premised on constitutional constraints and, it is very difficult for one to be constrained by norms they know nothing about. After all, one cannot tie themselves to the mast if he or she does not know where the rope is.
 U.S. Const. art. II, § 1, cl. 8.
 Gold, Hadas. “Donald Trump: We’re Going To ‘Open Up’ Libel Laws.” Politico, February 26, 2016.
 Rappeport, Alan. “Donald Trump Threatens To Sue The Times Over Article On Unwanted Advances.” The New York Times, October 13, 2016.
 Letter from Marc E. Kasowitz to Dean Baquet.
 Gertz v. Welch, 418 U.S. 344 (1974).
 U.S. Const. amend. I.
 Gitlow v. New York, 268 U.S. 652 (1925). Near v. Minnesota, 283 U.S. 697 (1931).
 Terminiello v. City of Chicago, 337 U.S. 1 (1949).
 NAACP v. Button, 371 U.S. 415 (1963).
 New York Times Co. v. Sullivan, 376 U.S. 262 (1964).
 Ross, Janell. “So Which Women Has Donald Trump Called ‘Dogs’ And ‘Fat Pigs?’” The Washington Post, August 8, 2015.
 Jackson, Hallie, and Alex Johnson. “Miss USA Contestant Details Unwanted Encounters With Trump.” NBC News, October 13, 2016.
 Capozzi, Joe. “Local Woman Says Trump Groped Her.” Palm Beach Post, October 12, 2016.
 Fahrenthold, David. “Trump Recorded Having Extremely Lewd Conversation About Women in 2005.” The Washington Post, October 8, 2016.
 Supra note 5, at 346.
 Diamond, Jeremy. “Donald Trump Jumps In: The Donald’s Latest White House Run Is Officially On.” CNN, June 17, 2015.
 See generally, Bruce Ackerman, we the people: foundations (1991).
 Hughes, Siobhan. “Donald Trump’s Pledge to Defend Article XII of Constitution Raises Eyebrows.” Wall Street Journal, July 7, 2016.
Photo Credit Flickr User:Gage Skidmore
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