Trump claims the publications were designed to damage his business reputation, sabotage his candidacy in the 2024 election, and interfere with the election. According to the lawsuit, they were published in “bad faith, out of hatred and ill-will directed towards President Trump without any regard for the truth”.
A federal judge threw out the lawsuit on September 19, but did so on a legal technicality without addressing the content of the allegations. Trump’s lawyers have said they will refile so the issues involved remain active.
Trump’s lawsuit is governed by a 1964 Supreme Court ruling, New York Times v. Sullivan. One of the most celebrated of cases handed down by the court during the era known as the rights revolution, the ruling has provided the press in the US with one of the most protected spaces in the world in which to operate.
The Sullivan case
On March 29 1960, the New York Times published an advertisement funded by northern supporters of Martin Luther King. Headlined Heed Their Rising Voices, it described a number of actions the city government of Montgomery, Alabama had taken to thwart the civil rights movement’s anti-segregation protests and to punish those involved. The city’s police commissioner, L.B. Sullivan, sued the paper for defaming him, even though he was not mentioned by name.
His case rested on the fact there were a small number of factual inaccuracies in the advertisement and that it undermined his professional reputation. A southern jury, upholding Sullivan’s claim, awarded him damages of US$500,000 (£371,000) – roughly equivalent to US$5 million today.
Dismissing Sullivan’s claim, a unanimous Supreme Court established the key test that has governed US press freedom regarding public officials ever since. The “actual malice” test requires evidence that information was published “with knowledge that it was false or with reckless disregard of whether it was false or not”.
This means that by themselves, factual inaccuracies are not sufficient to make a case. And since most journalists and commentators seek to be diligent about the material they publish, the ruling has historically created an extremely high bar for litigants. This has granted the media in the US freedoms that extend well beyond those in many other nations.
In legal terms, then, Trump’s case is highly likely to fail.
Wider context
Sullivan also has important things to say in a country currently embroiled in debates about the scope of free political speech and press commentary.
Under pressure from Trump, broadcaster CBS cancelled The Late Show in July, hosted by frequent Trump critic Stephen Colbert, while ABC has now suspended Jimmy Kimmel’s late night show. The latter move followed a furore over comments the host made about Trump’s reaction to the death of far right conservative activist Charlie Kirk.
The debates have also been driven by Trump’s history of lawsuits against those who disagree with him – including, most recently, the Wall Street Journal, and also against ABC and CBS over issues separate to the rows over their talkshow hosts. He has also launched an investigation into former special prosecutor Jack Smith and taken action to put pressure on law firms representing Trump critics as well as against Harvard University, among others.
In 1964, the Supreme Court understood the importance of the context in which the case had been brought, namely the civil rights movement. In the 1960s, libel suits were used by southern states to attempt to control news coverage of civil rights demonstrations. Officials knew that white southern juries would not find in favour of northern newspapers sympathetic to desegregation.
When the Supreme Court considered its judgment in Sullivan, the New York Times was facing 11 other libel suits in Alabama alone with a total of more than US$5 million at stake. CBS was defending five libel suits in southern states with a total cost of almost $2 million.
Fearful of unfavourable verdicts and monetary damages that risked bankruptcy, some media outlets limited or stopped outright coverage of civil rights protests, just as southern segregationists wanted. This was what the court called a “chilling effect … on First Amendment freedoms”. Fear of consequences can limit people’s willingness to speak out, and self-censorship takes the place of official regulation.
In such a context of intimidation, warned the court, “the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the first amendment freedoms cannot survive”. Americans today of all political persuasions would be wise to pay attention. Good, effective political debate can only happen when participants do not fear or risk retaliation for critical commentary.
Politics was also no place for the thin-skinned, warned the justices in 1964. The commitment to first amendment freedoms meant debate “should be uninhibited, robust, and wide-open, and […] it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials”. A public official, wrote Justice Arthur Goldberg in concurrence, “must expect that his official acts will be commented upon and criticised”.
While unlikely that they anticipated the type of vitriol increasingly familiar to us in the age of social media, the principle nevertheless remains: criticism of job performance is inherent in public roles. If you don’t like it, don’t get involved, and certainly don’t use the law of libel and defamation to seek redress for hurt feelings.
In its Sullivan judgment, the Supreme Court understood the dangers to free speech in a time of polarised debate. Its ruling contains important warnings for Americans that extend well beyond the latest Trump lawsuit.
Emma Long, Associate Professor of American History and Politics, University of East Anglia
This article is republished from The Conversation under a Creative Commons license. Read the original article.