President Trump made history on Friday when he became the first president to sue a newspaper for an article that exposed something he did not want brought to light. In so doing, he again used the Oval Office as a platform to settle scores and to carry out a personal vendetta rather than to serve the public interest.
Trump’s unprecedented step came in the context of his heightened sensitivity about anything having to do with Jeffrey Epstein, the infamous deceased child sexual abuser. On July 17, The Wall Street Journal triggered the suit when it published an article that claimed Trump had sent Epstein a “lewd” birthday card in 2003 when the latter turned 50 years old.
Trump reacted almost immediately, filing suit the next day seeking $10 billion in damages. But he has his eyes on something even bigger than that suit — namely the possibility of weakening the Constitution’s protection of press freedom.
His lawsuit alleges that the Journal’s article was an attempt to “inextricably link President Trump to Epstein” and that the Journal “falsely claim[ed] that the salacious language of the letter is contained within a hand-drawn naked woman, which was created with a heavy marker.” The president claims that the newspaper “failed to attach the alleged drawing, failed to show proof that President Trump authored or signed any such letter, and failed to explain how this purported letter was obtained.”
His lawsuit charges that with “malicious intent … Defendants concocted this story to malign President Trump’s character and integrity and deceptively portray him in a false light.” Those allegations tee up the constitutional battle that the president wants to wage.
Trump’s suit against the Journal has already reaped benefits, redirecting Epstein-related ire from the MAGA base away from him. His supporters now have a familiar target: the press and its alleged persecution of the president.
In addition, it is an important step in Trump’s long-running desire to get the United States Supreme Court to reverse decades of precedent and make it easier for public figures to win libel and defamation suits against newspapers and other media outlets. Like other strongman leaders, if he can’t control the media directly, he wants to coerce and intimidate it. Relaxing its legal protection is one way to accomplish that goal.
In the 2016 campaign, Trump promised: “One of the things I’m going to do if I win, I’m going to open up our libel law so when they (the press) write purposely negative and horrible and false articles, we can sue them and win lots of money.”
He has failed so far to deliver on that promise. But as we know, he is not easily dissuaded.
Newspapers, radio or television stations that have the audacity not to do the president’s bidding must be made to pay a price, with the hope that others will seek to avoid that fate by censoring themselves. Trump’s quick and unprecedented resort to the courts sends a clear message to any media outlet that crosses him.
He may be feeling good, but the rest of us should not be.
As Thomas Jefferson wrote in 1786: “Our liberty depends on the freedom of the press, and that cannot be limited without being lost.” He went on to note that “To the sacrifice, of time, labor, fortune, a public servant must count upon adding that of peace of mind and even reputation. And all this is preferable to European bondage. “
Almost 200 years later, Supreme Court Justice Hugo Black reiterated Jefferson’s sentiment. “The Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy,” he explained. “The press was to serve the governed, not the governors.” Turmp wants exactly the opposite.
Seven years before Black wrote those lines, the Supreme Court, in another classic defense of press freedom, made it very hard for public figures to win defamation suits against news outlets of the kind Trump filed on Friday.
“To sustain a claim of defamation or libel,” the court said, “the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate.”
Justice William Brennan explained that America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open” meant “that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Echoing Jefferson, he added, “Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error.”
Since 1964, public figures have found it nearly impossible to succeed in cases like the one Trump filed on Friday. Whether he or the Journal loses in the lower courts, the president may be hoping that his case will make its way to the Supreme Court so it can again come to his rescue and do his bidding. Justices Clarence Thomas and Neil Gorsuch have already indicated their belief that the court’s 1964 decision and its actual malice standard should be overruled.
So, keep an eye on what happens to Trump’s suit against The Wall Street Journal. The Journal’s fate will be important in shaping the fate of the freedom of all Americans.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.