Donald Trump's War on the First Amendment

If you were to ask Donald Trump’s supporters what they most admire about the GOP front-runner, chances are they would cite his so-called authenticity, his willingness to “tell it like it is” and, perhaps more than anything else, his rejection of that great bugaboo of the Obama Age: political correctness.

Such qualities ought to mean that whatever else Trump may be—a blowhard, a demagogue, a bigot, a reality TV huckster, a malignant narcissist, an unparalleled deal maker—he’s an ardent believer in press protections, free speech and the First Amendment. Indeed, in a Feb. 27 appearance on the Fox News channel, Trump seemed—at first—to be saying so, declaring, “I love free press. I think it’s great.”

But like much of what is taken as a given in the crazy-town vortex that is the Trump presidential campaign, the image of the candidate as a champion of free speech is a mirage. The bullying billionaire can sling mud and demean his real and imagined enemies with the best of them. The problem, however, is that he can’t take it when others fire back.

The very next sentence that Trump uttered during the Fox interview revealed a diametrically opposite view of the First Amendment. “We ought to open up the libel laws,” he said, thus making it easier to sue journalists who write critical things about him.

Trump’s on-air comments came a day after he had addressed the same subject at a rally in Fort Worth, Texas. Unhappy with certain news reports, he told a throng of cheering followers, “I think the media is among the most dishonest groups of people I’ve ever met. They’re terrible. If I become president, oh, do they have problems. They’re going to have such problems.”

He added:

One of the things I’m going to do if I win, and I hope we do, and we’re certainly leading, is I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws so that when The New York Times writes a hit piece, which is a total disgrace, or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.

What Trump probably means by “opening up” our libel laws is that, as president, he would work to overturn a line of landmark Supreme Court decisions dating back to the court’s unanimous 1964 decision in The New York Times v. Sullivan.

Prior to Sullivan, defamation lawsuits were governed exclusively by state law, and they were often slanted in favor of plaintiffs, especially rich ones who could afford the steep costs involved. To prevail, plaintiffs only had to establish that they had been defamed by a preponderance of the evidence—the lowest standard of proof in our legal system. As a practical matter, this meant that anyone wishing to criticize the wealthy and the powerful did so at considerable personal risk.

The Sullivan case changed all that by constitutionalizing defamation law throughout the United States. The justices wrote that in order to protect our “profound national commitment” to uninhibited, robust and wide-open debate that “may well include vehement, caustic and sometimes unpleasantly sharp attacks,” the First and Fourteenth amendments would heretofore serve as protection for defamation defendants. Public officials, they further instructed, must be precluded from recovering damages for allegedly defamatory statements related to official conduct unless they establish by “clear and convincing evidence” (a far higher standard of proof) that such statements are made with “actual malice”—that is, that they are made with the knowledge that they are false or with reckless disregard for the truth.

In a series of subsequent decisions in the late ’60s and early ’70s, the court extended Sullivan and the “actual malice” rule to defamation lawsuits brought by “public figures,” such as Trump and many of the corporations that he controls and operates.

This is what has the Republican hopeful so hopping mad. In the years following Sullivan and its legal progeny, less than 10 percent of defamation cases brought by public figures have resulted in plaintiff victories.

Trump is nothing if not litigious. As the political journalist Olivia Nuzzi of The Daily Beast wrote last year—in an article titled “Donald Trump Sued Everyone but His Hairdresser”—Trump has filed cases against “people, businesses, and entire cities and countries. He’s sued a newspaper, his ex-wife, a quaint business card store in Georgia and a Native American tribe. He’s cried breach of contract, government favoritism, fraud, and libel.”

And when it comes to libel, contrary to his daily pontifications about being a “winner,” you can count Trump and his business interests among the biggest courtroom losers.

Perhaps the best-known legal setback to date occurred in the litigation surrounding Trump University, a venture Trump helped to found in 2004 to “train, educate and mentor entrepreneurs on achieving financial independence through real estate investing.”

There are currently three major lawsuits pending against Trump and his now-defunct real estate program—two federal class actions initiated by former students in San Diego and one brought in New York by the state’s attorney general, Eric Schneiderman.

Although the cases are separate and distinct from a technical standpoint, they share a common nucleus of allegations, which have been summarized in an online posting by the San Diego lawyers representing the former students. According to the attorneys, “Trump University and Trump violated federal law across the country and state law (in California, Florida, and New York) by promising, but not delivering access to Trump’s real estate techniques taught by ‘hand-picked’ professors at an elite ‘university,’ when in fact Trump was not substantively involved in the Live Events curriculum or selecting the instructors and the New York State Education Department had warned Trump it was unlawful to call it a ‘university.’ ”

The oldest of the San Diego cases was filed in 2010 by Tarla Makaeff, a yoga instructor who at first named only Trump University as a defendant. Trump himself was added to the case as a personal defendant two years later.

Makaeff enrolled in Trump University classes in 2008, spending $1,495 for an introductory session and later forking over $34,995 to enroll in the school’s “Gold Elite” program, which entitled her to four three-day “advanced” training workshops, a three-day mentoring session and other benefits.

Although Makaeff filled out evaluation forms praising the courses, she had changed her mind by the fall of 2009. She then requested a refund of her tuition but was denied. Thereafter, she wrote letters to the Better Business Bureau, her bank and government agencies, and she posted comments online, complaining that she had been pressured to give the school good evaluations and that the university had failed to deliver on its promises and had engaged in fraudulent and unfair business practices.

Trump University responded to Makaeff’s lawsuit with a defamation counterclaim. Makaeff’s lawyers, in turn, moved to strike the counterclaim, citing the Sullivan case and characterizing the counterclaim as a “strategic lawsuit against public participation,” or SLAPP.

As the Digital Media Law Project explains on its website, SLAPPs are lawsuits “filed in retaliation for speaking out on a public issue or controversy.” They usually, but not always, come in the guise of a defamation complaint. The goal of a SLAPP plaintiff isn’t necessarily to win a case on the merits but to intimidate and silence critics.

To combat the chilling effect that SLAPPs have on First Amendment rights, 28 states (including California) and the District of Columbia have enacted anti-SLAPP statutes that provide procedures for pretrial motions to dismiss or strike them.

Even though Makaeff’s case was filed in federal court, the California anti-SLAPP law applied to her fraud and unfair business-practice claims because those were based on California law. It took three years of heated litigation, but in 2013 the 9th Circuit Court of Appeals upheld Makaeff’s motion to strike, finding that she had spoken out on a matter of public concern and that Trump University was a public figure insofar as the dispute over its real estate offerings was concerned. As such, the court also held that Trump University could not meet the “actual malice” standard articulated by the Sullivan case.

In a stinging rebuke of its claim that Makaeff’s previous endorsement of the school showed that she had acted with malice when she later complained, the court wrote: “As the recent Ponzi-scheme scandals involving onetime financial luminaries like Bernard Madoff and Allen Stanford demonstrate, victims of con artists often sing the praises of their victimizers until the moment they realize they have been fleeced. Makaeff’s initial enthusiasm for Trump University’s program is not probative of whether she acted with actual malice.”

The school was subsequently ordered to pay Makaeff’s lawyers nearly $800,000 in attorneys’ fees.

Last week, Makaeff asked the trial judge assigned to her case to permit her to withdraw as a class representative and named plaintiff because of health issues. If her request is granted, the case will be carried forward by three other named plaintiffs. A pretrial conference to set a trial date has been calendared for May 6.

Trump’s loss to Makaeff is by no means his most embarrassing SLAPP setback. That honor goes to a case Trump filed a decade ago in New Jersey.

In 2006, Trump sued Time Warner Books and writer Timothy O’Brien, then a reporter with The New York Times and now the editor of Bloomberg View, alleging that he had been libeled in a biography O’Brien had written, “TrumpNation: The Art of Being The Donald.”

Instead of bringing the lawsuit in New York, which has an anti-SLAPP statute, Trump opted for a venue in New Jersey, which doesn’t have one. The alleged defamation that Trump cited was O’Brien’s claim in the book that, considering all of the real estate mogul’s assets and liabilities, Trump’s net worth was actually in the neighborhood of $150 million to $250 million rather than the $5 billion to $6 billion that he had claimed.

Even without an anti-SLAPP law to lean on, O’Brien won a state appellate court rulingin 2011, granting summary judgment in his favor and finding that Trump could not, as a matter of law, meet the Sullivan test of actual malice. For all the mischief he had caused, Trump was ordered to fork over a cool $1 million in legal fees.

Interviewed about his ordeal with Trump for an article published last week in The Washington Post, O’Brien told reporter Paul Farhi: “We blew him up on the whole notion that I set out with reckless disregard and malice. My lawyers drew and quartered him.”

Unbowed and seemingly gearing up for more battles, Trump is quoted in the same article as saying that he knew he couldn’t win the case against O’Brien. “I spent a couple of bucks on legal fees, and they spent a whole lot more,” he admitted. “I did it to make his life miserable, which I’m happy about.”

And that’s precisely the problem with Trump’s war on the First Amendment. He loves the combat. He thrives on it. And no matter how many lives he imperils in the process, and no matter how many times he comes up short in court, he has no intention of relenting.

As president, of course, Trump would have no power to repeal or negate the Sullivan decision. It would take a constitutional amendment to accomplish that, or a highly unlikely reversal by the Supreme Court.

Nonetheless, if elected, Trump could do real damage, vetoing pending legislation to enact a federal anti-SLAPP law and using his bully pulpit to dissuade the 22 states without such statutes from enacting them.

And then there’s all the legal baggage he would drag with him to the White House. The civil suits that he has initiated and been the target of won’t be stayed just because he’s traded Trump Towers for the Oval Office. As the Supreme Court held in Paula Jones’ lawsuit against Bill Clinton, sitting presidents are not immune from civil litigation arising out of events that transpired before they took office.

Derailing Trump’s war on the First Amendment or at least confining it to isolated courtroom skirmishes should be easy, but only if we keep one principle foremost in mind: that he must never, ever—and here words almost fail me—become president of the United States.

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