The tweet from President Donald Trump:
“We are going to take a strong look at our country’s libel laws, so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts.”
The response from ACLU attorney Brian Hauss:
President Trump’s threat to revise current libel laws is, frankly, not credible. There is no federal libel law, and the president does not have the authority to change state libel laws. Furthermore, the First Amendment provides strong protections against libel liability, particularly with respect to statements about public figures or matters of public concern. Whatever President Trump might think, he has no power to to override these constitutional protections.
If you think that’s good, then take a look at the letter sent by Elizabeth McNamara, attorney for publisher Henry Holt after Trump’s lawyers sent a cease-and-desist demand over Michael Wolff’s book, “Fire and Fury,” claiming it libels the president:
Mr. Trump is the President of the United States, with the “bully pulpit” at his disposal. To the extent he disputes any statement in the book, he has the largest platform in the world to challenge it. Generalized and abstract threats of libel do not provide any basis for President Trump’s demand that Henry Holt and Mr. Wolff withdraw the book from public discourse. Though your letter provides a basic summary of New York libel law, tellingly, it stops short of identifying a single statement in the book that is factually false or defamatory. Instead, the letter appears to be designed to silence legitimate criticism. This is the antithesis of an actionable libel claim….
To briefly address a few of the additional substantive claims identified in your letter, we note that you understandably cite to New York as the governing law, yet we were surprised to see that President Trump plans on asserting a claim for “false light invasion of privacy.” As you are no doubt aware, New York does not recognize such a cause of action. Messenger ex rel. Messenger v. Gruner Jahr Printing and Pub., 94 436, 448 (2000); Hurwitz v. US, 884 F.2d 684, 685 (2d Cir. 1989). Not only is this claim meritless; it is non-existent. In any event, it is patently ridiculous to claim that the privacy of the President of the United States has been violated by a book reporting on his campaign and his actions in office.
It’s at times like this when it’s clear that to be Trump’s attorney means being forced by your client to lash out at anyone who he perceives to be insulting or demeaning him, even though there’s no legal basis for that claim. I’ve never seen someone threaten to sue so many people — including virtually every major news outlet — without following through, as if the threat alone will make them back down.
Fortunately, his targets refuse to be bullied. Besides, they know that if he were to file an actual lawsuit, they’d be able to use the discovery process to reveal all sorts of things he’d rather not become public. Thus, they call his bluff time and again, but that doesn’t stop him from going full bluster, both on Twitter and the letterhead of his attorneys.
One last thought: considering all the false claims and personal attacks that are part of so many of Trump’s public statements, loosening the libel laws probably wouldn’t work to his benefit. He’d face an onslaught of lawsuits against him from multiple parties.