So now President Donald Trump’s re-election campaign is filing SLAPP suits against news organizations — that is, libel suits with no legal merit whose goal is to intimidate rather than to expose the truth.
The lawsuits have targeted The New York Times, The Washington Post and CNN, all of which have the resources to defend themselves. But the Trump campaign’s tactics raise a larger question: Will these suits embolden others to weaponize the courts against media outlets that lack the financial wherewithal to fight back against deep-pocketed opponents?
SLAPP stands for “strategic lawsuits against public participation.” A typical example might involve a developer who’s seeking to build a controversial strip mall and who files a frivolous libel suit against neighborhood critics or a small local newspaper in order to silence them. According to the Reporters Committee for Freedom of the Press, 31 states, including Massachusetts, have anti-SLAPP laws aimed at discouraging such suits. There is no federal anti-SLAPP law.
For a president's political operation to sue news organizations for libel is virtually unprecedented — but not surprising coming from Trump, who said during the 2016 campaign that he wanted to “open up our libel laws” so that it would be easier for public figures to collect damages. The lawsuits involve four opinion pieces — all of which, as Jacob Gershman notes in The Wall Street Journal, “contain passages implying Donald Trump sought or welcomed Russia's intervention in the 2016 presidential election or the 2020 race.”
The articles in question were written by Max Frankel, former executive editor of the Times; two Post opinion journalists, Greg Sargent and Paul Waldman; and CNN contributor Larry Noble, a former general counsel at the Federal Election Commission.
Without going into too much detail, the pieces all assert that the Trump campaign had sought help from the Russians during the 2016 campaign and that it appeared to be willing to do so again. (Noble links to an ABC News interview with Trump in which the president all but invited foreign interference in 2020.) Among other things, the Trump campaign cites the Mueller Report as evidence that there was no collusion between the campaign and Russia.
Yet the Frankel commentary was published several weeks before the mostly unredacted version of the Mueller Report was released. Moreover, U.S. District Judge Reggie Walton last week lambasted Attorney General William Barr for mischaracterizing the Mueller Report in his initial summary, writing that Barr had sought to obscure ties between the Trump campaign and Russia as well as multiple episodes of possible obstruction of justice. You could almost say that it sounds like collusion.
As for 2020, the Times recently reported that Russia is attempting once again to help Trump (as well as Bernie Sanders, according to the Post). Trump’s indifference and even outright hostility to efforts aimed at curbing that influence could certainly be characterized as welcoming Russian interference.
All this is by way of arguing that the lawsuits are publicity stunts aimed at stirring up the Trumpist base. Not only are they outrageous in and of themselves, but they could also pose a threat to the First Amendment.
I’m not a lawyer, but the constitutional principles at issue are well understood. First, there is the fact that the articles in question are opinion pieces. Opinion is protected by the First Amendment. As the Supreme Court put it in Gertz v. Robert Welch (1974), “there is no such thing as a false idea.” Of course, if you make a defamatory statement about someone that could be proven false, merely labeling it as “opinion” is no protection, as the court ruled in Milkovich v. Lorain Journal (1990). But the facts laid out in the Mueller Report, as well the Trump interview with ABC News cited by Noble, cut against the Trump campaign's legal argument.
More important, the three news organizations are protected by the 1964 precedent set in New York Times v. Sullivan, in which the court found that public officials would have to prove “actual malice” in order to win a libel suit; that standard was later extended to public figures as well. Because of the Times decision, the Trump campaign would have to show that the media outlets published the four pieces in question despite knowing or suspecting they were false. ( As I wrote last year, Justice Clarence Thomas has said that he would like to weaken the Times v. Sullivan protections. But of course.)
Not only would the Trump campaign find it virtually impossible to prove that the Times, the Post and CNN knew what they were publishing was false — there are mountains of evidence to suggest that what they published was true.
In other words, these are the presidential equivalent of SLAPP suits, designed solely to harass and intimidate.
So what is the solution? Judges are strongly encouraged to throw out frivolous libel suits at the earliest possible stage because of the chilling effect that they have on news organizations and others seeking to exercise their First Amendment rights. That is exactly what should happen with the Trump campaign’s suits.
More broadly, the suits should serve as a wake-up call. The libel laws are intended as a way for people who have been harmed by false, defamatory statements to obtain compensation. But libel can also be used to silence critics — or, in the case of the Times, the Post and CNN — to discredit them in the eyes of Trump’s supporters.
Not only do the courts need to throw out these suits as quickly as possible; they also must take steps to ensure that the Trump campaign’s actions don’t trickle down to the state and local levels, which would encourage the widespread abuse of the courts for partisan political advantage.
One possible answer: Passing anti-SLAPP laws in places that don’t have them, including the federal courts. And, where necessary, strengthening them to make sure they have real teeth.
WGBH News contributor Dan Kennedy’s blog, Media Nation, is online at dankennedy.net.
