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Donald Trump Wrong About Watering Down Libel Laws

March 28, 2016

There is no way to describe last week’s Washington Post interview with Donald Trump without using, or at least thinking, expletives.  Though the following transcript portion is lengthy it is also telling for the lack of depth Trump exhibits when pressed on any matter–this one being his desire to loosen the libel laws in the nation.

Trump wants to sue news organizations he believes have written what he calls “hit pieces.”  As a former radio broadcaster and news reporter this matter resonates for me.  As a history buff and follower of politics and a daily consumer of the work of journalists I do not wish to see limitations placed on the free press.

Before we venture into Trump’s tortured reasoning and chaotic sentence structure during the Post interview let me place this matter into some larger context.

Right now there is a high bar–and for good reason–about how high public officials need to jump to prove libel.  That is a result from a court case I first learned of in high school civics.  A case I was nerdy enough then to find so interesting I wrote a paper on it and still have it in my collection of childhood mementoes.

From 1964, the famed New York Times Co. v. Sullivan case underscored that a public figure has to prove an offending statement was made with “actual malice, that is with knowledge that it was false or with reckless disregard of whether it was false or not.”   It is a high standard, a tough standard, and mostly an impossible standard to meet.    And for good reason.   

To simply not like what a reporter says or writes, or to make a frivolous claim about the intent of a journalist would severely limit the working press corps in this nation.    Whether Trump knows or not–and I strongly suggest he does not know–this matter of libel law is clear, workable, and agreed to by justices from both ends of the political spectrum.

RYAN: Would you expand, for example, prior restraints against publications?

TRUMP: No, I would just say this. All I want is fairness. So unfair. I have stories and you have no recourse, you have no recourse whatsoever because the laws are really impotent.

MARCUS: So in a better world would you be able to sue me?

TRUMP: In a better world — no — in a better world I would be able to get a retraction or a correction. Not even a retraction, a correction.

RYAN: Well, now, you’ve been a plaintiff in libel suits so you know a little bit of the elements …

TRUMP: I had one basic big libel suit, it was a very bad system, it was New Jersey. I had a great judge, the first one, and I was going to win it. And then I had another good judge, the second one, and then they kept switching judges. And the third one was a bad judge. That’s what happened. But, uh…

RYAN: But there’s standards like malice is required. Would you weaken that? Would you require less than malice for news organizations?

TRUMP: I would make it so that when someone writes incorrectly, yeah, I think I would get a little bit away from malice without having to get too totally away. Look, I think many of the stories about me are written badly. I don’t know if it’s malice because the people don’t know me. When Charles writes about me or when Ruth writes about me, you know, we’ve never really met. And I get these stories and they’re so angry and I actually say, I actually say, “How could they write?” – and many stories I must tell you, many stories are written that with a brief phone call could be corrected before they’re written. Nobody calls me.

STEPHEN STROMBERG, EDITORIAL WRITER: How are you defining “incorrect?” It seems like you’re defining it as fairness or your view of fairness rather than accuracy.

TRUMP: Fairness, fairness is, you know, part of the word. But you know, I’ve had stories that are written that are absolutely incorrect. I’ll tell you now and the word “intent”, as you know, is an important word, as you know, in libel. I’ll give you an example. Some of the media, not all of it, but some of it, is very, very strong on – you know I get these massive crowds of people, and we’ll get protesters. And these protesters are honestly, they’re very bad people. In many cases, they’re professionals. Highly trained professionals. And I will rent an arena for 20,000 seats and they will come in – because there’s really no way – how you going to be able to tell – somebody said “oh you shouldn’t let ‘em in” – how you gonna know, you know? They walk in. [Inaudible] So we had an incident this weekend, which was amazing in Tucson, Arizona where a man, a protestor, wearing a Ku Klux Klan outfit, another one dragging an American flag, was walking out of the arena, and an African American man who was a supporter was sitting there listening to the speech and we had to stop because they were so loud – they’re so loud, these people, I don’t know what they do, they’re trained voices or something. And they’re walking up and you saw it, because it was all over television, and the African American man became incensed I think the guy said something to him like you know what, like “screw you,” okay? Or worse. I think, because he looked over to him and said something to him and the guy just had it. Now, they were together, these two. The one wearing a Ku Klux Klan, the other dragging a flag or something, but the African American man, who I think was an Air Force person, I just read he had a pretty stellar life so far. And he just became incensed. So when I saw the television yesterday early in the morning I saw the Ku Klux Klan, I saw exactly what happened. By the time it got on to the national shows that was for the most part taken out. They just had this African American smacking, you know, fighting. And it didn’t make sense, you know, why, why. But if you saw it in the morning it made a lot more sense. We don’t condone violence at all but it’s very, very unfair reporting and we, you know…

RYAN: Mr. Trump, you’ve mentioned many times during the campaign, in fact including this morning, instances you feel where the press has been biased or unfair or outright false in their reporting, and you’ve mentioned that you want to “open up” the libel laws. You’ve said that several times.

TRUMP: I might not have to, based on Gawker. Right?

[CROSSTALK]

TRUMP: That was an amazing—

RYAN: My question is not so much why you feel they should be open but how. What presidential powers and executive actions would you take to open up the libel laws?

TRUMP: Okay, look, I’ve had stories written about me – by your newspaper and by others – that are so false, that are written with such hatred – I’m not a bad person. I’m just doing my thing – I’m, you know, running, I want to do something that’s good. It’s not an easy thing to do. I had a nice life until I did this, you know. This is a very difficult thing to do. In fact I’ve always heard that if you’re a very successful person you can’t run for office. And I can understand that. You’ll do a hundred deals, and you’ll do one bad one or two bad ones — that’s all they read about are the bad ones. They don’t read about the one hundred and fifty great ones that you had. And even some of the ones they write that are good, they make them sound bad. You know, so I’ve always heard that. I’ve heard that if you’re successful – very successful – you just can’t run for—

RYAN: But how would you fix that? You’ve said that you would open up the libel laws.

TRUMP: What I would do, what I would do is I’d – well right now the libel laws, I mean I must tell you that the Hulk Hogan thing was a tremendous shock to me because – not only the amount and the fact that he had the victory — because for the most part I think libel laws almost don’t exist in this country, you know, based on, based on everything I’ve seen and watched and everything else, and I just think that if a paper writes something wrong — media, when I say paper I’m talking about media. I think that they can do a retraction if they’re wrong. They should at least try to get it right. And if they don’t do a retraction, they should, they should you know have a form of a trial. I don’t want to impede free press, by the way. The last thing I would want to do is that. But I mean I can only speak for – I probably get more – do I, I mean, you would know, do I get more publicity than any human being on the earth? Okay? I mean, [Editor’s note: Trump points at Ruth Marcus] she kills me, this one – that’s okay, nice woman.

HIATT: But just – given the Supreme Court rulings on libel — Sullivan v. New York Times — how would you change the law?

TRUMP: I would just loosen them up.

RUTH MARCUS: What does that mean?

[Crosstalk]

TRUMP: I’d have to get my lawyers in to tell you, but I would loosen them up. I would loosen them up. If The Washington Post writes badly about me – and they do, they don’t write good – I mean, I don’t think I get – I read some of the stories coming up here, and I said to my staff, I said, “Why are we even wasting our time? The hatred is so enormous.” I don’t know why. I mean, I do a good job. I have thousands of employees. I work hard.

I’m not looking for bad for our country. I’m a very rational person, I’m a very sane person. I’m not looking for bad. But I read articles by you, and others. And, you know, we’ve never – we don’t know each other, and the level of hatred is so incredible, I actually said, “Why am I – why am I doing this? Why am I even here?” And I don’t expect anything to happen–

RYAN: Would that be the standard then? If there is an article that you feel has hatred, or is bad, would that be the basis for libel?

TRUMP: No, if it’s wrong. If it’s wrong.

RYAN: Wrong whether there’s malice or not?

TRUMP: I mean, The Washington Post never calls me. I never had a call, “Why – why did you do this?” or “Why did you do that?” It’s just, you know, like I’m this horrible human being. And I’m not. You know, the one thing we have in common I think we all love the country. Now, maybe we come at it from different sides, but nobody ever calls me. I mean, Bob Costa calls about a political story – he called because we’re meeting senators in a little while and congressmen, supporters – but nobody ever calls.

RYAN: The reason I keep asking this is because you’ve  said three times you’ve said we are going to open up the libel laws and when we ask you what you mean you say hatred, or bad–

TRUMP: I want to make it more fair from the side where I am, because things are said that are libelous, things are said about me that are so egregious and so wrong, and right now according to the libel laws I can do almost nothing about it because I’m a well-known person you know, etc., etc.

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