SAUL LOEB/AFP/Getty Images(WASHINGTON) — White House Chief of Staff Reince Priebus said a change in the nation’s libel laws “is being looked at” by the Trump administration, a move some legal experts said would be nearly impossible.
“I think it’s something that we’ve looked at, and how that gets executed or whether that goes anywhere is a different story,” Priebus said to ABC News’ Chief White House Correspondent Jonathan Karl on This Week on Sunday.
“I think that newspapers and news agencies need to be more responsible with how they report the news,” he said.
Libel is legally defined as making a false statement of fact while knowing it is false or having reckless disregard for the truth. In the 1964 landmark opinion in New York Times v. Sullivan, the U.S. Supreme Court ruled that the First Amendment protects the publication of statements about public officials except when false statements are made with “actual malice,” defined as “knowledge that it was false or with reckless disregard of whether it was false or not.”
How could the libel laws change?
The only way to change the libel law is to “get courts to reinterpret that body of law or alter the U.S. Constitution,” said Robert Corn-Revere, a First Amendment expert and attorney with Davis Wright Tremaine LLP.
Amy Adler, a law professor at the NYU School of Law, said such a move would have to come from growing dissent, which does not appear to be present as of now.
“It’s conceivable that President Trump could appoint judges who would change that interpretation by the U.S. Supreme Court [in New York Times v. Sullivan],” Adler said.
But she added that constitutional lines are “very clear.”
“There is a shared consensus on the right and the left,” she said. “This is not a divided issue. It’s not like Roe v. Wade, where people are aching to overturn it.”
Corn-Revere said Trump’s appointee to the U.S. Supreme Court, Justice Neil Gorsuch, “does not appear likely to alter established understandings of the First Amendment,” based on his past rulings.
A constitutional amendment would require a congressional vote and ratification from the states. The most recent proposal to alter the First Amendment was a movement to ban flag desecration that failed for the fourth time in 2005, according to Corn-Revere.
“He just can’t be serious,” said Corn-Revere about Trump’s suggestions about changing libel law. “I can’t picture this gaining a lot of support.”
What Trump has said about libel laws in the past
Priebus may have been the one confirming the Trump administration’s interest in reviewing libel laws this weekend, but Trump himself has questioned them openly in the past.
“They write false stories. You can’t really sue because the libel laws are essentially non-existent,” Trump said at an Arkansas event in February 2016. “We’re going to open up the libel laws so when they write falsely, we can sue the media and we can get these stories corrected and get damages.”
In March 2016, during the campaign, Trump had a meeting with The Washington Post‘s editorial board and talked about his views on the existing libel laws. He spoke, in part, about the libel case at the time against Gawker Media.
“For the most part, I think libel laws almost don’t exist in this country,” Trump said in the meeting.
“I just think that if a paper writes something wrong, they should at least try to get it right. And if they don’t do a retraction, 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.”
In a meeting with New York Times executives and reporters on Nov. 22, 2016, the then-president-elect appeared to calm nerves about his earlier threats to reform libel laws.
“I think you’ll be happy,” Trump said in the meeting, according to the transcript published by the paper. “Actually, somebody said to me on that, they said, ‘You know, it’s a great idea, softening up those laws, but you may get sued a lot more.’ I said, ‘You know, you’re right, I never thought about that.’ I said, ‘You know, I have to start thinking about that.’ So, I think you’ll be OK. I think you’re going to be fine.”
His attitude appears to have changed in the subsequent months, however, tweeting in March, “The failing @nytimes has disgraced the media world. Gotten me wrong for two solid years. Change libel laws?”
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