libel happy

How Donald Trump’s fantasy First Amendment would get him in even more trouble for saying crazy shit

Elena Scotti/FUSION

Donald Trump, a man who launched his current political career by falsely alleging that the first black president of the United States is not an American citizen, would like it to be easier to sue for defamation.

“Well in England they have a system where you can actually sue if someone says something wrong,” the man who accused Ted Cruz’s father of conspiring to assassinate John F. Kennedy said on Monday.

“Our press is allowed to say whatever they want and get away with it,” continued the man who enlisted the CEO of a right-wing conspiracy website to run his presidential campaign. “And I think we should go to a system where if they do something wrong—I’m a big believer, tremendous believer of the freedom of the press, nobody believes it stronger than me—but if they make terrible, terrible mistakes and those mistakes are made on purpose to injure people, and I’m not just talking about me, I’m talking about anybody else, then yes, I think you should have the ability to sue them.”

This also isn’t the first time the man who suggested that Hillary Clinton used performance-enhancing drugs before the presidential debates has called for less rigorous First Amendment protections. All of which raises the question: Given Trump’s longstanding record of making and repeating false claims about a continuously expanding list of people, how would he fare under such a standard?

“Trump could well get into trouble over his statements in England,” Jenny Afia, a media lawyer and partner at London-based Schillings Partners LLP, told me over email.

The law in the United Kingdom is considered more favorable to people making defamation claims, she said, “mainly because of the different burdens of proof.”

In the United States, if you’re talking about a public figure and you get something wrong, it’s the plaintiff’s burden to prove that it was a false statement made with “actual malice”—which means an intent to cause harm. In England, if there is an allegation that something is false, it’s the defendant’s burden to prove that it was true or that they engaged in what’s defined as responsible newsgathering–basic due diligence—before they made the claim.

That would likely be a difficult standard for Trump to reach for many of his allegations. And so I asked Mark Stephens, a lawyer and senior member of London-based Howard Kennedy LLP, to give me his thoughts on some of Trump’s tweets.

“This is an untrue allegation of lying by President Obama,” Stephens told me over email, “and thus defamatory.”

“‘Crooked Hillary’ is an allegation of criminality for which he would be liable—and indeed [Clinton] could sue in the UK,” he continued. “Also Miss Universe could sue as a person said to have acted reprehensibly in giving false testimony to the Clinton campaign. And the allegation on [the] sex tape is, if untrue, an allegation of discreditable behavior.”

Trump, in such a hypothetical, could face legal fines, could be forced to admit he had made false statements or issue an apology, and could possibly be subject to an injunction to get him to stop repeating false claims. The latter of which, again hypothetically, could muzzle around 70% of his current campaign’s most inflammatory talking points.

And so in his fantasy legal world, the person who may fare the worst could be Trump himself, which is why his insistence on weakening free speech protections seemed to puzzle most of the lawyers I spoke to.

“It is rather unusual that someone who seems to have built a political career based upon passing on rumors and casting aspersions on people would want to change the law to move to a system that would punish the repetition of such rumors unless you are prepared to defend their truth in court,” David Schulz, a partner at New York-based Levine Sullivan Koch & Schulz LLP, told me over the phone. “And I suggest that many of the things Mr. Trump has stated in tweets are things he would not want to defend in a court of law.”

Stephens had a slightly blunter take on the situation: “Odd that he does not want to uphold the First Amendment.”