Free Speech and Defamation

The life story of President-elect Donald Trump is best defined by lawsuits. He files them like the rest of us breathe. According to one source, as of 2016 he and his businesses had been involved in over 4,000 lawsuits in U.S. federal and state courts. After the 2020 presidential election, his campaign and its allies filed numerous lawsuits challenging election processes and results in multiple states. In 2022, he filed a defamation suit against CNN over their use of the term “the big lie” to describe his 2020 election claims (the judge dismissed the lawsuit the following year). Later in 2022, he sued the Pulitzer Prize board for defamation after it upheld the awards given to the Washington Post and New York Times for their reporting on Russian interference in the 2016 presidential election.

Earlier this month, his lawsuit against ABC was settled when ABC agreed to pay $16 million to his presidential library (sure); more recently, he sued the Des Moines Register for publishing an unfavorable poll before the November election.

It’s useful, I think, to lay out how the First Amendment (which protects Free Speech, among other rights) coexists with defamation laws – laws that limit freedom of speech.

First, a couple of definitions.

• The ‘speech’ clause in the First Amendment says ‘Congress shall make no law . . . abridging the freedom of speech. . . .” This sounds pretty absolute, but it has never been interpreted in an absolute sense.

• Defamation is a false statement presented as a fact that causes injury or harm to the reputation of an individual, business, or entity. Slander is spoken defamation and libel is written or published defamation (I remember this by recalling that ‘slander’ and ‘spoken’ both begin with an ‘s.’)

I want to point out a couple of elements of the charge of ‘defamation.’

• The statement must be false

• The statement must cause injury or harm to the reputation of an individual, business, or entity.

  • Hurt feelings don’t count.

We don’t know exactly what the people who wrote the Constitution meant when they wrote the First Amendment. Documents from the era focused almost exclusively on political speech, and they accepted common law exceptions such as prohibitions against libel, slander, sedition, and obscenity.

In 1798 (less than a decade after the First Amendment was ratified in 1791), Congress passed the Alien and Sedition Acts, which criminalized false statements critical of the government. These acts were approved by a Federalist Congress and signed by the Federalist President John Adams; they were aimed at stifling the opposition from the Democratic-Republican party. When Jefferson became President in 1801, these acts were allowed to die a quiet death.

It's not until 1964 that we see a Supreme Court case about defamation. New York Times Co. v. Sullivan elevated the standard for defamation when public officials were the target of the false speech; the officials had to prove ‘actual malice,’ not just falsity, to win defamation suits. The reasoning went like this: public officials make use of the press (including television and radio) to make their case before the public. The press has to have the right to push back. In 1967, a subsequent case extended this standard to include any public figures, not just public officials.

Yet another case (this one in 1974) said two things about defamation cases: private individuals need only prove negligence, not actual malice, and private individuals have to prove actual damages. In 1988, in the case of Hustler Magazine v. Falwell, the court ruled that public figures cannot recover for emotional distress caused by parody or satire unless they prove actual malice. The term ‘actual malice’ is subjective and is intended to exonerate people who made honest mistakes. Examples of actual malice would include publishing a story after receiving clear evidence that it was false or deliberately altering quotations to create a misleading impression.

It’s also important to understand that expressions of opinion are protected under the First Amendment, while factual assertions are subject to defamation laws. I can say that I think my neighbors who are still flying their Trump flags are cretins, but I can’t say that they actually ARE cretins without incurring the possibility of a lawsuit. That’s why we see the most honest criticisms of people like Trump from opinion pieces and not news pieces. Op-ed columnists are not telling you what is happening; they are telling you what they think is happening or what they think about things that are happening.

• I have cleverly exempted myself from the possibility of a lawsuit by titling this newsletter In My Opinion. I didn’t realize that until today. Phew!

Trump’s legal team understands defamation law (although their client does not). His lawsuit against the Des Moines Register, for example, does not claim defamation; rather, it alleges ‘election interference’ related to the inaccurate Selzer poll published three days before the election. The problem with this suit, of course, is that it would be hard for Trump to claim election interference in a process that he ultimately won.

We have to understand that Trump doesn’t file lawsuits to win them; he files lawsuits to inconvenience, incapacitate, or bankrupt people he feels have wronged him. In his 1987 Book Art of the Deal, he states: "I love to have the court battle. Sometimes I lose, but it doesn't matter. I always cost the other guy plenty." This sentiment aligns with his approach of using lawsuits as a strategic tool, regardless of the outcome.

We have evidence of what Trump does when the shoe is on the other foot – when he is the target of a lawsuit. To refresh your memory – E. Jean Carroll claimed that Trump assaulted her in the 1990s. Trump publicly denied her claims, describing her allegations as a ‘hoax’ and claiming she fabricated the story to promote her book, making disparaging remarks about her character. Carroll filed defamation lawsuits against Trump.

This complicated case went back and forth in 2022 and 2023; whenever Carroll gained a legal victory, Trump publicly defamed her again. He’s a bit of a slow learner. In my opinion.

In another very public case, Rudy Giuliani was found to have defamed two election workers in Georgia, Ruby Freeman and her daughter Shaye Moss; the judge awarded them a total of $148 million in damages. In October 2024, Giuliani was ordered to surrender assets to them in payment of this judgment, including his Manhattan penthouse, luxury watches, and his Mercedes-Benz. Giuliani has not fully complied with asset turnover requirements, and Freeman and Moss have taken legal steps to enforce the judgment.

Privileged individuals like Trump and Giuliani are accustomed to using the law to benefit themselves rather than complying with the law like everyone else. Freeman and Moss were represented pro bono by a New York law firm, which meant that the women could pursue their legal action without bearing the financial burden typically associated with such lawsuits.

Yale historian Timothy Snyder gives us some language to use in talking about this in his discussion of the concept of "obeying in advance" in his 2017 book On Tyranny: Twenty Lessons from the Twentieth Century. The idea refers to the tendency of people to preemptively conform to what they think a regime or authority expects of them, even before being directly ordered to do so. This behavior often stems from fear, uncertainty, or a desire to align with perceived power.

Snyder uses this concept to warn against the dangers of passivity and self-censorship in the face of authoritarianism. By preemptively adjusting one’s behavior, individuals effectively surrender their freedoms without direct coercion, making it easier for oppressive systems to take hold.

The lesson Snyder emphasizes is to resist this impulse and instead consciously think and act in accordance with one's principles and democratic values. He advises people to be vigilant and deliberate in preserving their autonomy and resisting authoritarian tendencies.

The fact that Snyder wrote this book in 2017 should not surprise us; he was reacting to rising global instability, but the lessons of his book apply to the Trump era. Trump is a bully and a wanna-be autocrat (IMHO). ABC showed him that even a whisper that he was bigly mad (which they saw as a threat that their newspeople could be frozen out of the White House press room for the next four years) could whip opponents into submission.

Nearly 30 years ago, Graydon Carter, the editor of Vanity Fair magazine, described Trump in Spy magazine as a “short-fingered vulgarian.” Trump didn’t like that — but we need to remember that truth is an absolute defense against defamation.