Donald Trump
Donald Trump (Paul Vernon)

Donald Trump has said he wants to “open up” our libel laws and make it easier to sue journalists. But general counsel for media companies aren’t stopping the presses because of his threats, calling them unrealistic at best and unconstitutional at worst.

In a tirade against the news media back in February, during a campaign stop in Fort Worth, Texas, Trump said he wanted to change libel laws—largely the products of state rather than federal laws—so that when news outlets “write purposely negative and horrible and false articles, we can sue them and win lots of money,” according to POLITICO. Trump reiterated his disdain for journalists this week, calling them “all bad” during a speech in Jacksonville, Florida.

In-house media lawyers aren’t fazed. “I have heard of nobody starting to rewrite their internal libel guidelines in preparation of Donald Trump overturning the First Amendment,” says Charles Glasser, the longtime global media counsel at Bloomberg News and now a media consultant and adjunct professor of media law and ethics at the New York University Graduate School of Journalism.

David Giles, deputy general counsel at The E.W. Scripps Co., agrees with that sentiment. “A statement like [Trump's], while it’s acknowledged, has led to no decision to batten down the hatches or refocus our news coverage in any way,” Giles says.

That’s because such comments, the veteran news media GCs say, show a deep misunderstanding of the law. Under well-established U.S. Supreme Court jurisprudence, public figures such as Trump, can win a libel suit only if they can prove that the supposedly defamatory statement was published with “actual malice,” defined as knowledge of or reckless disregard for the falsity of the statement.

Trump “thinks there should be liability for intentional falsehoods for public figures, but that already exists now. That’s what actual malice is,” says George Freeman, assistant general counsel at The New York Times for 31 years and now executive director of the nonprofit Media Law Resource Center. “He wasn’t advocating for change. He doesn’t know what the law is.”

Perhaps vaguely aware of this legal precedent, Trump, in other breaths, has appeared to advocate for a change to this high legal standard, saying, as POLITICO reported, “With me, they’re not protected, because I’m not like other people. … We’re going to open up libel laws, and we’re going to have people sue you like you’ve never got sued before.”

Again, not so fast, the news media GCs say. “How would one even go about that?” Glasser says of changing the public figure actual malice standard. “Do you pass a Public Officials Protection Act? That’s crazy, and it would be unconstitutional on its face given Supreme Court precedents.”

Scripps’ Giles agreed, noting the strong public policy rationale for the standard. “There’s more than 40 years of judicial precedents, both on the federal and state level, and the core principle on which that precedent is created is one of the significant cornerstones of our democracy,” he says. “It’s hard to see that there’s going to be a sea change any time soon on that.”

Donald Trump has said he wants to “open up” our libel laws and make it easier to sue journalists. But general counsel for media companies aren’t stopping the presses because of his threats, calling them unrealistic at best and unconstitutional at worst.

In a tirade against the news media back in February, during a campaign stop in Fort Worth, Texas, Trump said he wanted to change libel laws—largely the products of state rather than federal laws—so that when news outlets “write purposely negative and horrible and false articles, we can sue them and win lots of money,” according to POLITICO. Trump reiterated his disdain for journalists this week, calling them “all bad” during a speech in Jacksonville, Florida.

In-house media lawyers aren’t fazed. “I have heard of nobody starting to rewrite their internal libel guidelines in preparation of Donald Trump overturning the First Amendment,” says Charles Glasser, the longtime global media counsel at Bloomberg News and now a media consultant and adjunct professor of media law and ethics at the New York University Graduate School of Journalism.

David Giles, deputy general counsel at The E.W. Scripps Co., agrees with that sentiment. “A statement like [Trump's], while it’s acknowledged, has led to no decision to batten down the hatches or refocus our news coverage in any way,” Giles says.

That’s because such comments, the veteran news media GCs say, show a deep misunderstanding of the law. Under well-established U.S. Supreme Court jurisprudence, public figures such as Trump, can win a libel suit only if they can prove that the supposedly defamatory statement was published with “actual malice,” defined as knowledge of or reckless disregard for the falsity of the statement.

Trump “thinks there should be liability for intentional falsehoods for public figures, but that already exists now. That’s what actual malice is,” says George Freeman, assistant general counsel at The New York Times for 31 years and now executive director of the nonprofit Media Law Resource Center. “He wasn’t advocating for change. He doesn’t know what the law is.”

Perhaps vaguely aware of this legal precedent, Trump, in other breaths, has appeared to advocate for a change to this high legal standard, saying, as POLITICO reported, “With me, they’re not protected, because I’m not like other people. … We’re going to open up libel laws, and we’re going to have people sue you like you’ve never got sued before.”

Again, not so fast, the news media GCs say. “How would one even go about that?” Glasser says of changing the public figure actual malice standard. “Do you pass a Public Officials Protection Act? That’s crazy, and it would be unconstitutional on its face given Supreme Court precedents.”

Scripps’ Giles agreed, noting the strong public policy rationale for the standard. “There’s more than 40 years of judicial precedents, both on the federal and state level, and the core principle on which that precedent is created is one of the significant cornerstones of our democracy,” he says. “It’s hard to see that there’s going to be a sea change any time soon on that.”