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Mitchell Hamline Law Review
Volume 49 Issue 2 Article 7
2023
Defaming the President
Douglas B. McKechnie
Follow this and additional works at: https://open.mitchellhamline.edu/mhlr
Part of the Torts Commons
Recommended Citation
McKechnie, Douglas B. (2023) "Defaming the President," Mitchell Hamline Law Review: Vol. 49: Iss. 2,
Article 7.
Available at: https://open.mitchellhamline.edu/mhlr/vol49/iss2/7
This Article is brought to you for free and open access by
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please contact sean.felhofer@mitchellhamline.edu.
© Mitchell Hamline School of LawDEFAMING THE PRESIDENT
Douglas B. McKechnie ∗
I. INTRODUCTION ................................................................................................. 536
II. NEW YORK TIMES V. SULLIVAN AND THE ACTUAL MALICE STANDARD .... 538
III. A PRESIDENT’S RELATIONSHIP WITH DEFAMATION CLAIMS AND NEW YORK
TIMES V. SULLIVAN ............................................................................................... 540
A. Defamation Lawsuits Initiated by Donald Trump Prior to His Presidency
541
B. Defamation Lawsuits Filed After President Trump’s Election .................. 544
IV. A THREAT TO THE ACTUAL MALICE STANDARD ........................................ 547
A. Calls from the President to Abolish the Actual Malice Standard .......... 547
B. Calls from Supreme Court Justices to Abolish the Actual Malice Standard
548
V. SEDITIOUS LIBEL AND THE FIRST AMENDMENT....................................... 551
A. The Development of Seditious Libel in English Common Law ........... 551
B. Seditious Libel in the United States ........................................................ 553
VI. THE FIRST AMENDMENT AND A PRESIDENT’S DEFAMATION CLAIM.. 557
A. The President Is Solely Responsible for Executing the Business of the United
States Government ........................................................................................... 558
B. The First Amendment’s Legal Negation of Seditious Libel Applies Equally to
a President’s Defamation Claims ..................................................................... 561
C. The President’s Absolute Immunity from Civil Claims and Its Relation to
a President’s Defamation Claims ..................................................................... 564
VII. CONCLUSION ................................................................................................. 568
*
Douglas B. McKechnie is a Professor of Law at the United States Air Force Academy. The
author would like to thank his research assistant, Jessica Williams, from whom he received
excellent support. The author would also like to express his appreciation for the opportunity
to present this paper at the University of Central Florida’s Law Forum. The views expressed
herein are the author’s alone and do not necessarily reflect the official policy or position of
the United States Air Force Academy, the United States Air Force, the Department of
Defense, or the U.S. Government.2023] DEFAMING THE PRESIDENT 536
I. INTRODUCTION
On July 21, 2022, former President Donald Trump’s counsel sent
a 282-page cease and desist letter to the media outlet CNN. 1 The letter
alleged that CNN defamed the former President numerous times over the
course of six years. 2 To that end, the letter recounted a variety of examples
of alleged defamation that primarily revolved around CNN referring to the
former President as a liar. 3 The letter demanded CNN preserve any
documents relevant to the defamation allegations, issue an apology and
correction, and retract the allegedly defamatory statements. 4 The letter
further asserted that if CNN did not comply with former President Trump’s
demands, a defamation lawsuit would be forthcoming. 5 While cease and
desist letters are routine aspects of litigation, they are perhaps less routinely
sent from a President, or former President, of the United States. For former
President Trump, however, litigating defamation claims is not an
uncommon occurrence. 6
In fact, Mr. Trump has a history of pursuing defamation claims
against his critics and recognizing the costs it imposes on them. 7 He has sued
private individuals and media outlets for defamation when they criticized his
business practices, and his election campaign pursued a variety of
defamation claims during his 2020 reelection bid. 8 All the while, the former
President has recognized the difficult legal burden he faces in successfully
litigating defamation claims as a public figure and has advocated for a change
to defamation laws. 9 The defamation laws he advocates to change, however,
are grounded in the Supreme Court’s First Amendment jurisprudence.10
1
Letter from James M. Trusty, Ifrah Law, to Chris Licht, Chief Executive Officer, CNN (July
21, 2022) RE: Notice of Intent to Bring Civil Action for Defamation,
https://cdn.nucleusfiles.com/ae/ae734685-32d7-4d51-a380-25c76e1787e5/retraction-letter-
with-
exhibits.pdf?utm_medium=email_hf&utm_source=ncl__&utm_campaign=20220727___sa
&utm_content=__4518&_nlid=DeQr7wp9Qf&_nhids=9zgRSp76 [https://perma.cc/6VYK-
V3HZ].
2
Id. at 1–26.
3
Id.
4
Id. at 1, 25–26.
5
Id. at 1.
6
See, e.g., Trump v. Chi. Trib. Co., 616 F. Supp. 1434 (S.D.N.Y. 1985); Trump v. O’Brien,
29 A.3d 1090 (N.J. Super. Ct. App. Div. 2011); Makaeff v. Trump Univ., 715 F.3d 254 (9th
Cir. 2013); Trump Ruffin Com., LLC v. Loc. Joint Exec. Bd. Las Vegas, No. 2:15-cv-01984-
GMN-GWF, 2016 U.S. Dist. LEXIS 104087, (D. Nev. Aug. 8, 2016).
7
Paul Farhi, What Really Gets Under Trump’s Skin? A Reporter Questioning His Net
Worth, WASH. POST (Mar. 8, 2016), https://www.washingtonpost.com/lifestyle/style/that-
time-trump-sued-over-the-size-of-hiswallet/2016/03/08/785dee3e-e4c2-11e5-b0fd-
073d5930a7b7_story.html [https://perma.cc/DZL6-28FA].
8
E.g., Trump v. Chi. Trib. Co., 616 F. Supp. 1434 (S.D.N.Y. 1985); Makaeff v. Trump
Univ., 715 F.3d 254 (9th Cir. 2013); Complaint, Donald J. Trump for President, Inc. v. N.Y.
Times Co., No. 152099/2020 (N.Y. Sup. Ct. Feb. 26, 2020).
9
Hadas Gold, Donald Trump: We’re Going to ‘Open Up’ Libel Laws, POLITICO (Feb. 26,
2016), https://www.politico.com/blogs/on-media/2016/02/donald-trump-libel-laws-219866
[https://perma.cc/JUK3-RQ8S].
10
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).537 MITCHELL HAMLINE LAW REVIEW [Vol. 49:2
While Mr. Trump’s calls to change the law may appear to be quixotic or
frustrated musings, those calls have been echoed in the Court itself.11
Though originally a lone voice, Justice Thomas was joined by Justice
Gorsuch in arguing that the Court should revisit, if not overrule, the New
York Times v. Sullivan decision, which applied the First Amendment to
public officials' defamation claims. 12 With attacks coming from a President
and Justices of the Supreme Court, a day may come when the First
Amendment no longer provides the same robust protection for critics of
public officials. Presidents, however, are a unique sort of public official.
As the head of government and state, the President, as a single
individual, possesses an unparalleled authority to stand in the stead of the
government, speak for the government, and embody the government.13
Indeed, the Framers adopted the unitary executive not only to ensure the
President’s ability to act with decisive command of the government’s
bureaucracies, but also to ensure that people can debate and identify where
the fault lies when they are displeased with the government’s efficacy. 14 For
this reason, the First Amendment has a unique impact on a President’s
defamation claims—it prohibits them.
Unlike English common law, where the King is sovereign, in the
United States the people are sovereign, and the government is their agent.15
The Framers intended for the First Amendment to supplant the English
common law that allowed the government to silence its critics through
defamation prosecutions. 16 To facilitate and guarantee self-governance, the
First Amendment ensures that the people have an uninhibited ability to
discuss and debate the government’s successes and failures without the fear
of facing a defamation claim by the government itself. 17 For that same
reason, the First Amendment prohibits defamation claims by Presidents
because of their constitutional position and incomparable control over the
state and its actions. By prohibiting a President’s defamation claim, the First
Amendment ensures that the people can engage in an unrestrained debate
and enact political changes to the government through the democratic
process.
Part II of this Article details the constitutionalizing of defamation
and the development of the actual malice standard in New York Times v.
Sullivan. Part III explores former President Trump’s history of filing
defamation lawsuits as both a private citizen and President and describes his
reliance on defamation claims to address unwelcome public criticism. Part
IV details both the political and juridical attacks on the Supreme Court’s
11
See McKee v. Cosby, 139 S. Ct. 675, 682 (2019) (Thomas, J., concurring in denial of
certiorari); Berisha v. Lawson, 141 S. Ct. 2424, 2429–30 (2021) (Gorsuch, J., dissenting).
Berisha, 141 S. Ct. at 2429–30.
12
See infra Section VI.A.
13
See infra Section VI.A.
14
15
See James Madison, The Report of 1800, NAT’L ARCHIVES,
https://founders.archives.gov/documents/Madison/01-17-02-0202 [https://perma.cc/JAQ3-
Z2Y3].
16
Id.
17
See ZECHARIAH CHAFEE JR., FREE SPEECH IN THE UNITED STATES 18–20 (1941).
5372023] DEFAMING THE PRESIDENT 538
actual malice standard in Sullivan. Part V discusses the history of common
law seditious libel and the First Amendment’s impact on the government’s
legal authority to pursue defamation claims against its critics. Part VI argues
that, notwithstanding the vulnerability of Sullivan, the Constitution prohibits
a President’s defamation claims because of the First Amendment’s negation
of common law seditious libel and the President’s unique role within the
constitutional scheme.
II. NEW YORK TIMES V. SULLIVAN AND THE ACTUAL MALICE
STANDARD
In the United States, for the first 200 years, defamation was among
the categories of speech that the Supreme Court deemed wholly
unprotected by the First Amendment. 18 Falling outside the realm of First
Amendment protection, defamation claims and liability determinations
were primarily the province of state law. 19 In 1964, however, the Supreme
Court federalized defamation law in Sullivan. 20 Though just thirty years
before Sullivan, the Court highlighted defamation as a category of speech
whose regulation had “never been thought to raise any Constitutional
problem,” the Court in Sullivan found that defamation could “claim no
talismanic immunity from constitutional limitations.” 21 This fundamental
shift in the First Amendment’s impact on defamation provided the Court
an opportunity to both expound the values of the First Amendment as they
relate to self-governance and establish a new, more robust protection for
free speech. 22
In Sullivan, one of three elected City Commissioners in
Montgomery, Alabama, filed a defamation lawsuit against the New York
Times and four Alabama clergymen. 23 The clergymen had published an
advertisement in the New York Times describing multiple episodes of
police brutality that had occurred in Montgomery. 24 The Commissioner
who filed the suit was never named in the advertisement. 25 However,
because his responsibilities included supervising the police department, the
Commissioner alleged that the advertisement’s allegations about the
“police” implicated him by reference. 26 The Commissioner further claimed
that some of the information reported in the advertisement was untrue.27
Though the New York Times and the clergymen raised a First Amendment
18
See Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942).
19
Gertz v. Robert Welch, 418 U.S. 323, 369–70 (1974) (White, J., dissenting).
20
Id. at 377; N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964).
21
Chaplinsky, 315 U.S. at 572; Sullivan, 376 U.S. at 269.
22
Sullivan, 376 U.S. at 269–71, 279–80.
23
Id. at 256.
24
Id. at 256–59.
25
Id. at 258.
26
Id.
27
Id.539 MITCHELL HAMLINE LAW REVIEW [Vol. 49:2
defense at trial, the trial judge dismissed the defense and the jury found in
favor of the Commissioner. 28 The Alabama Supreme Court affirmed. 29
The United States Supreme Court, in reversing the judgment of the
Alabama Supreme Court, found that the First Amendment protected the
clergymen’s and the New York Times’ speech. 30 The Court began its
analysis by differentiating the case from typical defamation allegations. 31 The
Court noted that while it had intimated in the past that the First Amendment
did not protect defamatory statements, it made those assertions within the
context of standard defamation cases. 32 The plaintiff in Sullivan, however,
was a public official. 33 The Court reasoned that, just as with labels placed on
other unprotected categories of speech, simply identifying speech as
defamation was not enough to remove it completely from First Amendment
inspection. 34 Instead, the Court considered the speech at issue and
measured it against the values inherent in the First Amendment. 35
The values the Court identified as relevant to its discussion were
fundamentally related to the exchange of ideas in furtherance of self-
governance. 36 The First Amendment was intended to guarantee the
unrestrained right to freedom of expression so the people of the United
States could debate matters of public concern and, ultimately, make the
social and political changes they desired. 37 “Recognizing the occasional
tyrannies of governing majorities,” the Framers ensured people had the
freedom to express judgment on matters of public concern so criticisms
could be aired and the government could respond to the needs of the
people. 38 The Court acknowledged that the national commitment to
“uninhibited, robust, and wide-open” debate on matters related to self-
governance may manifest in biting and “unpleasantly sharp attacks on
government and public officials.” 39 Despite that, the Court identified the
right to speak and vigorously advocate as a fundamental principle embodied
in the United States Constitution. 40
The Court noted that the commitment to unfettered debate does
not depend on the truth of the ideas espoused. 41 Hyperbole, disparagement
of public officials, and falsity will inevitably enter public discourse. 42 Despite
the inevitable abuse, the First Amendment’s robust protection of all speech
28
Id. at 256, 262–63.
29
Id. at 256.
30
Id. at 264.
31
Id. at 268.
32
Id.
33
Id.
34
Id. at 269.
35
Id.
36
Id.
37
Id.
38
Id. at 270 (quoting Whitney v. California, 274 U.S. 357, 375–76 (1927) (Brandeis, J.,
concurring)).
39
Id.
40
Id. at 269.
41
Id. at 271.
42
Id.
5392023] DEFAMING THE PRESIDENT 540
is indispensable to democracy. 43 The Court posited that protecting even
untrue speech ensures that “the freedoms of expression [will] have the
‘breathing space’ that they ‘need . . . to survive.’” 44 Because the First
Amendment’s protection applies even to those who defame and make false
statements while criticizing public officials, the Court determined it was
necessary to constitutionalize the defamation claims of public officials. 45 To
that end, the Court announced the actual malice standard. 46 Public officials
would be unable to succeed in defamation claims unless they proved the
defamatory statements were made with the knowledge that the statements
were false or made with “reckless disregard” as to their truth. 47 Within four
years of creating the actual malice standard, the Court extended its reach
and raised its exacting standard; in addition to public officials, public figures’
defamation claims were subjected to the actual malice standard.48
Additionally, the Court defined the standard as a subjective one which
requires the plaintiff to prove that the speaker “entertained serious doubts
as to the truth of his publication.” 49
The actual malice standard was a significant extension of the First
Amendment’s protection. The requirement has undoubtedly frustrated and
dissuaded public officials and public figures from pursuing claims that may
have otherwise met pre-Sullivan standards. Thus, as the Court anticipated,
the actual malice standard has very likely allowed more falsities to enter the
public debate, especially regarding issues of national importance such as the
performance of federal public officials. 50 Presidents, as public officials, are
certainly subject to the actual malice standard, 51 but rarely are defamation
claims part of their public lives before or during their presidencies. Former
President Donald Trump, however, stands as the exception. No other
President since the Court’s Sullivan opinion has publicly battled with the
actual malice standard and its robust protection of speech like the former
President. 52
III. A PRESIDENT’S RELATIONSHIP WITH DEFAMATION CLAIMS
AND NEW YORK TIMES V. SULLIVAN
43
Id.
44
Id. at 271–72 (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963)).
45
Id. at 273, 280–81.
46
Id. at 279–80.
47
Id.
48
Associated Press v. Walker, 388 U.S. 130, 162 (1967) (Warren, J., concurring).
49
St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
50
Sullivan, 376 U.S. at 270–72.
51
Id. at 280–81.
52
See infra Part IV.541 MITCHELL HAMLINE LAW REVIEW [Vol. 49:2
A. Defamation Lawsuits Initiated by Donald Trump Prior to His
Presidency
Long before his presidency, Donald Trump was no stranger to
litigation. 53 In a 2016 review of public records, USA Today found that, over
the course of thirty years, Mr. Trump was involved in over 4,000 lawsuits.54
As a prominent business person and celebrity, many of the lawsuits were
contract, employment, and tax disputes. 55 While small in comparison,
fourteen of the over 4,000 lawsuits revolved around allegedly defamatory or
critical statements and half of which were initiated by Donald Trump, or his
companies, as a plaintiff. 56 Through those lawsuits, Mr. Trump sought
damages against several critics including a Pulitzer Prize-winning
architecture critic, a comedian, a financial reporter, a former student from
the short-lived Trump University, and a former Miss USA pageant
contestant. 57
Two of Mr. Trump’s claims were traditional defamation
allegations. 58 The first was filed against the Chicago Tribune and its
architecture critic for criticizing Mr. Trump’s plan to build the tallest
building in the world. 59 The suit, which cost the newspaper $60,000 in fees,
was dismissed because the ideas expressed by the critic were deemed
opinion and commentary. 60 Mr. Trump filed his next defamation lawsuit
against a publisher and author who wrote a book that explored, among other
things, Mr. Trump’s net worth. 61 Mr. Trump claimed that the author’s
assertions undervalued his net worth, and were thus defamatory. 62 The court
dismissed the claim and held that because Mr. Trump’s estimates of his own
net worth changed throughout the discovery process, he was unable to prove
the author’s estimates were false. 63 While the lawsuit was unsuccessful, Mr.
Trump asserted that the cost to pursue litigation was worthwhile because the
defendants “spent a whole lot more” money than he did, and Mr.
53
Nick Penzenstadler, Dive into Donald Trump's Thousands of Lawsuits, USA TODAY,
https://www.usatoday.com/pages/interactives/trump-lawsuits/ [https://perma.cc/5QTH-
2WYU].
54
Id.
55
Id.
56
Id.
57
Id. The lawsuit against Bill Maher was not a defamation lawsuit but a breach of contract
claim whose genesis flowed from a satirical criticism of Mr. Trump. Nick Penzenstadler,
Trump, Bill Maher and Miss Pennsylvania: The ‘I’ll Sue You’ Effect, USA TODAY,
https://www.usatoday.com/story/news/politics/elections/2016/2016/07/11/trump-bill-maher-
and-miss-pennsylvania-ll-sue-you-effect/85877342/ [https://perma.cc/BFG9-6B4N].
58
See Trump v. Chi. Trib. Co., 616 F. Supp. 1434, 1434–35 (S.D.N.Y. 1985); Trump v.
O’Brien, 29 A.3d 1090, 192 (N.J. Super. Ct. App. Div. 2011).
Trump v. Chi. Trib. Co., 616 F. Supp. 1434, 1435 (S.D.N.Y. 1985).
59
60
Id. at 1436; Nat Hentoff, Citizen Trump, WASH. POST (Oct. 19, 1985),
https://www.washingtonpost.com/archive/politics/1985/10/19/citizen-trump/88ecf4ba-6c1e-
4226-8924-4101a60f5478/ [https://perma.cc/TX9S-M2UG].
Trump v. O’Brien, 29 A.3d 1090, 1092–94 (N.J. Super. Ct. App. Div. 2011).
61
Id. at 1096.
62
Id. at 1099–1101.
63
5412023] DEFAMING THE PRESIDENT 542
Trump was happy it made the author’s “life miserable.”64 Finally, after being
sued by a former student for, among other things, deceptive business
practices, Mr. Trump’s Trump University filed a counter-claim. 65 In its
counterclaim, the university alleged the student defamed it by posting on
internet message boards and writing letters to the Better Business Bureau,
and her bank, claiming that the university engaged in “fraudulent business
practices” and other unsavory activities. 66 After the Ninth Circuit held that
the university was a limited-purpose public figure and thus California’s anti-
SLAPP statute applied, the district court, on remand, ordered Mr. Trump’s
university to pay over $700,000 in legal fees and costs to the student. 67
Mr. Trump has also used the legal system to pursue his critics under
other business-related legal theories, such as breach of contract, coupled
with defamation claims. 68 For example, Mr. Trump sued comedian Bill
Maher for a breach of contract after Mr. Maher joked he would donate
money to charity if Mr. Trump could produce a birth certificate proving he
was not the “spawn of his mother having sex with an orangutan.” 69 When
Mr. Trump produced his birth certificate and Mr. Maher refused to donate
the money, Mr. Trump filed suit. 70 However, Mr. Trump’s legal theory was
never tested in court; soon after filing the suit, Mr. Trump withdrew it. 71 In
another lawsuit, while he was a candidate for President, Mr. Trump’s hotel
brought an action against a labor union for public criticism directed at Mr.
Trump. 72 The union had organized a protest of one of Mr. Trump’s
campaign speeches and handed out leaflets alleging that Mr. Trump
“refused to agree to a fair process for workers at his hotel to form a union”
and suggested his employees were not free to unionize. 73 Mr. Trump’s hotel
eschewed a defamation claim and instead alleged federal and state claims
for false advertising and deceptive trade practices. 74 The court dismissed the
Paul Farhi, What Really Gets Under Trump’s Skin? A Reporter Questioning His Net
64
Worth, WASH. POST (Mar. 8, 2016), https://www.washingtonpost.com/lifestyle/style/that-
time-trump-sued-over-the-size-of-hiswallet/2016/03/08/785dee3e-e4c2-11e5-b0fd-
073d5930a7b7_story.html [https://perma.cc/DZL6-28FA].
65
Makaeff v. Trump Univ., 715 F.3d 254, 258 (9th Cir. 2013).
66
Id. at 260.
67
Makaeff v. Trump Univ., No. 10CV0940 GPC WVG, 2015 WL 1579000, at *28 (S.D.
Cal. Apr. 9, 2015).
68
See, e.g., Complaint, Trump v. Maher, No. BC499537 (filed Feb. 4, 2013),
https://i2.cdn.turner.com/cnn/2013/images/02/06/trump.v..maher.la.superior.court.doc.co
mplaint.pdf [https://perma.cc/K3JT-FQNM] [hereinafter Maher Complaint]; Trump Ruffin
Com., LLC v. Loc. Joint Exec. Bd. Las Vegas, No. 2:15-cv-01984-GMN-GWF, 2016 U.S.
Dist. LEXIS 104087 (D. Nev. Aug. 8, 2016).
69
See Maher Complaint, supra note 68, at 4.
70
Id.
71
Joseph Ax, Trump Withdraws “Orangutan” Lawsuit Against Comic Bill Maher, REUTERS
(Apr. 2, 2013), https://www.reuters.com/article/entertainment-us-usa-trump-lawsuit/trump-
withdraws-orangutan-lawsuit-against-comic-bill-maher-idUSBRE9310PL20130402
[https://perma.cc/N8VE-P57U].
72
See Trump Ruffin Com., LLC v. Loc. Joint Exec. Bd. Las Vegas, No. 2:15-cv-01984-GMN-
GWF, 2016 U.S. Dist. LEXIS 104087 (D. Nev. Aug. 8, 2016).
73
Id. at *3.
74
See id.543 MITCHELL HAMLINE LAW REVIEW [Vol. 49:2
hotel’s federal claims finding that because the leaflets were not commercial
speech, they could not give rise to false advertising or deceptive trade
practices claims. 75 In addition to dismissing the hotel’s federal claims, the
court also dismissed the state court claims for lack of jurisdiction. 76
Mr. Trump’s litigation over public criticism, however, has not
always ended in a withdrawal or dismissal of the suit. 77 For example, while
campaigning for the presidency, Mr. Trump filed a lawsuit against a
Spanish-language television station which included claims of defamation,
breach of contract, and intentional interference with contractual
relationships. 78 Mr. Trump objected to the television station’s president of
programing and content posting a picture on Instagram that placed Mr.
Trump next to Dylann Roof, an alleged vigilante murderer, with the caption
“no comments” written on it. 79 While the television station argued the
Instagram post was satirical and filed a motion to dismiss the lawsuit, the
parties settled the litigation before the court heard the motion to dismiss.80
Mr. Trump also pursued a defamation claim, among other claims, against a
former Miss USA pageant contestant for her comments about the Miss
USA pageant, including allegations that the pageant was “rigged” and
“fraudulent,” and the organization was “lacking in morals.” 81 Mr. Trump’s
organization filed an arbitration claim against the former pageant contestant,
Id. at *7.
75
Id. at *9.
76
See Veronica Villafañe, After Insults and $500 Million Lawsuit Settlement, Univision Execs
77
Meet with Trump, FORBES (Jan. 10, 2017),
https://www.forbes.com/sites/veronicavillafane/2017/01/10/after-insults-and-500-million-
lawsuit-settlement-univision-execs-meet-with-trump/?sh=475b01f14c23
[https://perma.cc/NX68-NVQB]; Ann Oldenburg, Donald Trump Wins $5 Million in
Pageant Victory, USA TODAY (Dec. 18, 2012),
https://www.usatoday.com/story/life/people/2012/12/18/donald-trump-wins-5-million-in-
pageant-victory/1777127/ [https://perma.cc/EU7C-Y95T].
78
See Complaint at 2, Miss Universe L.P., LLLP v. Univision Networks & Studios, Inc., No.
UNASSIGNED (N.Y. Sup. Ct. June 30, 2015),
https://www.scribd.com/document/270123665/Univision-Trump#download&from_embed
[https://perma.cc/DMQ7-6LFU].
79
Id. at 10; Alex Weprin, Univision Asks Court to Dismiss $500M Trump Lawsuit,
POLITICO (Dec. 4, 2015), https://www.politico.com/media/story/2015/12/univision-asks-
court-to-dismiss-500m-trump-lawsuit-004305/ [https://perma.cc/K8MU-3R7A].
80
See Motion to Dismiss at 10, Miss Universe L.P., LLLP v. Univision Networks & Studios,
Inc., No. 1:15-cv-5377 (S.D.N.Y. Dec. 4, 2015), https://casetext.com/brief/miss-universe-lp-
lllp-et-al-v-univision-networks-studios-inc-et-al_memorandum-of-law-in-support-re-24-
motion-to-dismiss-the-amended-complaint [https://perma.cc/2D7W-V6KM]; Veronica
Villafañe, After Insults and $500 Million Lawsuit Settlement, Univision Execs Meet with
Trump, FORBES (Jan. 10, 2017),
https://www.forbes.com/sites/veronicavillafane/2017/01/10/after-insults-and-500-million-
lawsuit-settlement-univision-execs-meet-with-trump/?sh=475b01f14c23
[https://perma.cc/NX68-NVQB].
81
See Oldenburg, supra note 77; Defamation Action Filed over Miss USA Rigging Claim,
REUTERS (June 8, 2012), https://www.reuters.com/article/us-usa-pageant/defamation-action-
filed-over-miss-usa-rigging-claim-idUSBRE8551I920120608 [https://perma.cc/FD28-
N6AD].
5432023] DEFAMING THE PRESIDENT 544
and after she failed to appear at the arbitration hearing, the arbitrator found
in favor of the organization. 82
B. Defamation Lawsuits Filed After President Trump’s Election
As discussed above, Mr. Trump was no stranger to defamation
lawsuits before he became President. 83 While his use of the court system to
assert defamation claims against his critics took a hiatus during much of his
presidency, President Trump rediscovered the strategy during his reelection
campaign. 84 Approximately nine months before the November 2020
presidential election, President Trump’s campaign committee, Donald J.
Trump for President, Inc. (the “Campaign”), filed defamation claims against
three major media outlets—the New York Times, the Washington Post, and
CNN. 85 The defendants were strikingly similar, as were the timing and
content of the claims. 86
Each of the three major media outlets sued by the Campaign had
previously caught the ire of President Trump for their critical reporting
about him and his presidency. In addition to calling each defendant “fake
news,” President Trump suggested the New York Times and CNN were
“the enemy of the people” and the New York Times, in particular, was “a
true ENEMY OF THE PEOPLE!”87 Each of the lawsuits, filed within days
of each other in late February and early March 2020, centered on allegedly
defamatory statements published approximately a year earlier in 2019. 88
The lawsuits revolved around statements published by the media
outlets that claimed the Campaign had sought Russian help, or coordinated
with Russia, to influence the 2016 presidential election. 89 As evidence that
82
See Oldenburg, supra note 77.
83
See supra Section IV.A.
84
See, e.g., Complaint, Donald J. Trump for President, Inc. v. N.Y. Times Co., No.
152099/2020 (N.Y. Sup. Ct. Feb. 26, 2020).
85
Complaint, Donald J. Trump for President, Inc. v. N.Y. Times Co., No. 152099/2020
(N.Y. Sup. Ct. Feb. 26, 2020); Complaint, Donald J. Trump for President, Inc. v. WP Co.
LLC, No. 1:20-cv-00626 (D.D.C. Mar. 3, 2020); Complaint, Donald J. Trump for President,
Inc. v. CNN Broad., Inc., No. 1:20-cv-01045 (N.D. Ga. Mar. 6, 2020).
86
See id.
87
Michael M. Grynbaum, Trump Calls the News Media the ‘Enemy of the American
People’, N.Y. TIMES (Feb. 17, 2017), https://www.nytimes.com/2017/02/17/business/trump-
calls-the-news-media-the-enemy-of-the-people.html [https://perma.cc/B7CF-2BFY];
Michael M. Grynbaum and Eileen Sullivan, Trump Attacks The Times, in a Week of
Unease for the American Press, N.Y. TIMES (Feb. 20, 2019),
https://www.nytimes.com/2019/02/20/us/politics/new-york-times-trump.html
[https://perma.cc/R8VM-V6W4]; J. Edward Moreno, Trump Hits CNN and Washington
Post Reporters as ‘Fake News’ During Briefing, THE HILL (Apr. 23, 2020),
https://thehill.com/homenews/administration/494426-trump-hits-cnn-and-washington-post-
reporters-as-fake-news-during [https://perma.cc/LUN2-CQ9J].
88
See Complaint, Donald J. Trump for President, Inc. v. N.Y. Times Co., No. 152099/2020
(N.Y. Sup. Ct. Feb. 26, 2020); Complaint, Donald J. Trump for President, Inc. v. WP Co.
LLC, No. 1:20-cv-00626 (D.D.C. Mar. 3, 2020); Complaint, Donald J. Trump for President,
Inc. v. CNN Broad., Inc., No. 1:20-cv-01045 (N.D. Ga. Mar. 6, 2020).
89
See Complaint at 1, N.Y. Times Co., No. 152099/2020; Complaint at 1, WP Co. LLC,
No. 1:20-cv-00626; Complaint at 1, CNN Broad., Inc., No. 1:20-cv-01045.545 MITCHELL HAMLINE LAW REVIEW [Vol. 49:2
the statements were false, the Campaign’s complaints cited Special Counsel
Robert Mueller’s findings in his Report on the Investigation into Russian
Interference in the 2016 Presidential Election, media reports, statements by
President Trump’s press secretary, White House statements, and the lack
of evidence to support the reporting. 90 Finally, the Campaign’s complaints
alleged that it was not “entirely surprising” the media outlets would publish
false statements about the Campaign, as they were “extremely biased” or
engaged in a “systematic pattern of bias” against the Campaign. 91
Ultimately, each of the media outlets filed motions to dismiss the
Campaign’s complaints. 92 After nine months and a year of litigation
respectively, the New York Times’ and CNN’s motions to dismiss were
granted. 93 In granting the New York Times’ and CNN’s motions to dismiss,
the respective courts focused on various deficiencies in the Campaign’s
complaints. As to the Campaign’s allegations against the New York Times,
the Supreme Court of New York reasoned that the article, which was the
subject of the complaint, was an opinion piece and because it could not be
construed as conveying a fact that was provably false, it was protected by the
First Amendment. 94 The court also determined the Campaign was not the
subject of the opinions expressed in the piece; instead, the court found that
the statements were opinions about President Trump, his family, and his
associates. 95 Finally, the court determined that the Campaign’s bias
allegations, without more, failed to meet the First Amendment’s actual
malice standard. 96 The District Court for the Northern District of Georgia
found CNN’s allegedly defamatory statement could be construed as a
statement of fact. 97 However, like the court in Sullivan, the court in the CNN
case held that alleging the media outlet had a bias toward the Campaign, or
was motivated by ill will, was not enough to meet the First Amendment’s
actual malice standard. 98 The court reasoned that while that allegation
demonstrated malice in the colloquial sense, it did not meet the
constitutional definition of actual malice. 99 As of the time of this writing, the
Washington Post’s motion to dismiss was still pending. 100
90
See Complaint at 3, N.Y. Times Co., No. 152099/2020; Complaint at 2, WP Co. LLC,
No. 1:20-cv-00626; Complaint at 5, CNN Broad., Inc., No. 1:20-cv-01045.
91
Complaint at 4, N.Y. Times Co., No. 152099/2020; Complaint at 5–6, WP Co. LLC, No.
1:20-cv-00626; Complaint at 2, 6, CNN Broad., Inc., No. 1:20-cv-01045.
92
Decision & Order at 1, N.Y. Times Co., No. 152099/2020; Motion to Dismiss, WP Co.
LLC, No. 1:20-cv-00626 (D.D.C. July 20, 2020); Donald J. Trump for President, Inc. v.
CNN Broad., Inc., 500 F. Supp. 3d 1349, 1352 (N.D. Ga. 2020).
Decision & Order at 3, N.Y. Times Co., No. 152099/2020; Donald J. Trump for President,
93
Inc. v. CNN Broad., Inc., 500 F. Supp. 3d 1349, 1352 (N.D. Ga. 2020).
94
Decision & Order at 2, N.Y. Times Co., No. 152099/2020.
95
Id. at 3.
96
Id.
97
Donald J. Trump for President, Inc. v. CNN Broad., Inc., 500 F. Supp. 3d 1349, 1356
(N.D. Ga. 2020).
Id. at 1357–58.
98
99
Id.
100
Docket, WP Co. LLC, No. 1:20-cv-00626,
https://www.courtlistener.com/docket/16921398/donald-j-trump-for-president-inc-v-wp-
company-llc/ [https://perma.cc/GJ8U-V9E4].
5452023] DEFAMING THE PRESIDENT 546
President Trump did not limit his defamation lawsuits to major
media outlets; instead, the fourth defamation defendant was a small, local
television station in Wisconsin. 101 President Trump’s final defamation claim
during his reelection campaign began with a cease and desist letter to
WJFW-TV, a local NBC affiliate, in Rhinelander, Wisconsin. 102 In the
letter, President Trump’s campaign attorney asserted that the television
station was airing an advertisement that contained false information. 103 More
specifically, the letter stated that a politically motivated Super PAC
produced the advertisement and, to avoid FCC compliance issues and
“costly and time-consuming litigation,” the television station must no longer
air the advertisement. 104 At the same time, the Campaign sent letters to
broadcasters in Florida, Michigan, Minnesota, and Pennsylvania with
similar demands and warnings. 105
The Wisconsin television station continued to air the advertisement
despite the letter. 106 Approximately one month after sending the letter, and
approximately seven months before Election Day, the Campaign filed a
lawsuit in Wisconsin state court. 107 The Campaign alleged that WJFW-TV
recklessly aired a “far-left” Super PAC’s false and defamatory
advertisement, even after receiving the Campaign’s cease and desist letter.108
Although the Campaign was the named plaintiff, the crux of the allegations
focused on and surrounded President Trump’s statements in the
advertisement, whether the advertisement accurately portrayed the
statements, and how the advertisement affected President Trump’s
reelection. 109 In the first paragraph of the complaint, the Campaign alleged
the advertisement contained “false and defamatory statements about
President Trump” and digitally manufactured a statement President Trump
Complaint at 1, Donald J. Trump for President, Inc. v. Northland Television, LLC, (Wis.
101
Cir. Ct. Apr. 13, 2020), available at https://int.nyt.com/data/documenttools/as-filed-
complaint-against-wjfw-nbc/c2cf4310be841434/full.pdf [https://perma.cc/A9V9-NTJV].
David Shepardson, Trump Campaign Drops Suit Against Wisconsin NBC Affiliate over
102
Ad, REUTERS (Nov. 16, 2020), https://www.reuters.com/article/us-usa-election-ad-
lawsuit/trump-campaign-drops-suit-against-wisconsin-nbc-affiliate-over-ad-
idUSKBN27W320 [https://perma.cc/EMQ2-EXTX]; Complaint at Exhibit G, Northland
Television, LLC, No. 2020-CV-__ (Wis. Cir. Ct. Apr. 13, 2020), available at
https://int.nyt.com/data/documenttools/as-filed-complaint-against-wjfw-
nbc/c2cf4310be841434/full.pdf [https://perma.cc/A9V9-NTJV].
Complaint at Exhibit G, Northland Television, LLC, No. 2020-CV-__ (Wis. Cir. Ct. Apr.
103
13, 2020), available at https://int.nyt.com/data/documenttools/as-filed-complaint-against-
wjfw-nbc/c2cf4310be841434/full.pdf [https://perma.cc/3EDP-54EG].
104
Id.
Shepardson, supra note 102.
105
106
Complaint at 2, Northland Television, LLC, (Wis. Cir. Ct. Apr. 13, 2020), available at
https://int.nyt.com/data/documenttools/as-filed-complaint-against-wjfw-
nbc/c2cf4310be841434/full.pdf [https://perma.cc/3EDP-54EG].
107
Complaint at Exhibit G, Northland Television, LLC, (Wis. Cir. Ct. Apr. 13, 2020),
available at https://int.nyt.com/data/documenttools/as-filed-complaint-against-wjfw-
nbc/c2cf4310be841434/full.pdf [https://perma.cc/3EDP-54EG].
Id. at 1.
108
Id. at 1–2, 6.
109547 MITCHELL HAMLINE LAW REVIEW [Vol. 49:2
“never said.”110 Thus, while the Campaign alleged the advertisement was
“made to harm the reputation of the Trump Campaign,” the complaint
focused on the advertisement’s alleged harm to President Trump’s
reputation and the impact on his candidacy and less on the business
reputation of the Campaign as a corporate entity. 111 Ultimately, the case was
moved to federal court and the Campaign added the Super PAC, Priorities
USA, as a defendant. 112 The parties settled the case and filed a stipulated
dismissal with each agreeing to pay their own costs and attorney’s fees. 113
IV. A THREAT TO THE ACTUAL MALICE STANDARD
From the perspective of safeguarding the right to criticize the
President, the courts’ dismissals of the defamation claims against the New
York Times and CNN, discussed above, 114 is reassuring. The First
Amendment’s actual malice standard functioned as intended; it safeguarded
the “uninhibited, robust, and wide-open” debate about the President.115
However, the actual malice standard is by no means universally accepted as
appropriate, desirable, or constitutionally mandated. Indeed, significant
juridical and political voices have called for its abolition. 116
A. Calls from the President to Abolish the Actual Malice Standard
From a political perspective, Donald Trump’s efforts to abolish the
actual malice standard were perhaps a momentary, but nevertheless
noteworthy part of his presidential campaign. During a campaign rally in
2016, then-candidate Trump castigated the media. 117 After referring to the
media as “dishonest,” he pledged, if elected, to “open up our libel laws.”118
In particular, Mr. Trump noted that changing the libel laws, presumably by
110
Complaint, Northland Television, LLC, (Wis. Cir. Ct. Apr. 13, 2020),
https://int.nyt.com/data/documenttools/as-filed-complaint-against-wjfw-
nbc/c2cf4310be841434/full.pdf [https://perma.cc/3EDP-54EG].
Id. at 16. The television station highlighted this argument in its motion to dismiss after the
111
case was moved to federal court. Motion to Dismiss at 11–13, Northland Television, LLC,
No. 3:20-cv-00385-wmc (May 5, 2020),
https://www.documentcloud.org/documents/6883359-Northland.html (last visited Dec. 19,
2022).
Trump Settles Defamation Lawsuit Against Wisconsin TV Station, FIRST AMENDMENT
112
WATCH AT N.Y.U. (Nov. 23, 2020), https://firstamendmentwatch.org/trump-settles-
defamation-lawsuit-against-wisconsin-tv-station/ [https://perma.cc/9EXY-JEYL].
113
Christopher Cole, Corrected: Trump Camp Drops Defamation Suit over Virus ‘Hoax’
Ad, LAW 360 (Nov. 16, 2020), https://www.law360.com/articles/1328961
[https://perma.cc/XM9R-6J4E].
See supra Section III.B.
114
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
115
See infra Section IV.A.–B.
116
Hadas Gold, Donald Trump: We’re Going to ‘Open Up’ Libel Laws, POLITICO (Feb. 26,
117
2016), https://www.politico.com/blogs/on-media/2016/02/donald-trump-libel-laws-219866
[https://perma.cc/JUK3-RQ8S].
118
Id.
5472023] DEFAMING THE PRESIDENT 548
abolishing the actual malice standard, would allow him to sue the New York
Times and the Washington Post and “win money instead of having no
chance of winning because they’re totally protected.” 119 Though unlikely a
political issue his supporters were passionate about, Mr. Trump’s
comments revealed his desire to make defamation lawsuits easier to litigate
as a public figure. 120 The comments also revealed the media outlets that
would bear the brunt of his lawsuits if the actual malice standard was
overturned. 121 Three years later, as discussed above, these were indeed two
of the four media outlets President Trump’s campaign committee sued
during his run for reelection. 122
Perhaps easily dismissed as frustrated musings, Mr. Trump’s desire
to “open up” libel laws was, in reality, a remarkable invective against the
actual malice standard—remarkable because of Mr. Trump’s record of
defamation claims before his presidential campaign and because of his
public recognition that defamation claims are useful in retaliating against his
critics. 123 The comments were also remarkable because a person who was
ultimately elected President raised the idea of eliminating the actual malice
standard in the context of a campaign for President—one of the most
consequential persons of public concern and debate in the United States.
Still, the actual malice standard is a creature of Supreme Court
jurisprudence and beyond the reach of the political branches. 124 Yet Mr.
Trump does not stand alone in his desire to rescind it. There are calls
emanating from the Supreme Court itself to abolish the doctrine. 125 While
Justice Thomas, for some time, was the sole author of opinions rejecting the
actual malice standard, he was joined by one of President Trump’s
appointees—Justice Gorsuch. 126
B. Calls from Supreme Court Justices to Abolish the Actual Malice
Standard
In 2019, Katherine McKee filed a petition for a writ of certiorari
with the Supreme Court. 127 Ms. McKee accused the actor Bill Cosby of rape
and alleged that Mr. Cosby’s lawyer wrote and distributed a letter that
defamed her. 128 The district and circuit courts dismissed Ms. McKee’s
Id.
119
See id.
120
Id.
121
See supra Section III.B.
122
Paul Farhi, What Really Gets Under Trump’s Skin? A Reporter Questioning His Net
123
Worth, WASH. POST (Mar. 8, 2016), https://www.washingtonpost.com/lifestyle/style/that-
time-trump-sued-over-the-size-of-hiswallet/2016/03/08/785dee3e-e4c2-11e5-b0fd-
073d5930a7b7_story.html [https://perma.cc/Y3VV-ABUN].
City of Boerne v. Flores, 521 U.S. 507, 536 (1997).
124
125
See McKee v. Cosby, 139 S. Ct. 675, 682 (2019) (Thomas, J., concurring in denial of
certiorari); Berisha v. Lawson, 141 S. Ct. 2424, 2429–30 (2021) (Gorsuch, J., dissenting).
See Berisha v. Lawson, 141 S. Ct. 2424 (2021).
126
127
McKee v. Cosby, 139 S. Ct. 675, 675 (2019) (Thomas, J., concurring in denial of
certiorari).
128
Id.549 MITCHELL HAMLINE LAW REVIEW [Vol. 49:2
claims because she was a limited-purpose public figure, and the Supreme
Court denied her petition for writ of certiorari. 129 Justice Thomas concurred
in the denial of Ms. McKee’s writ of certiorari but wrote separately to argue
that the Court should reconsider the actual malice standard. 130
Justice Thomas began his criticism of the actual malice standard by
noting that before the Court’s Sullivan decision, state courts and legislatures
were responsible for outlining the contours of defamation law. 131 That
changed, he argued, when the Court’s ruling in Sullivan federalized
defamation law by announcing the new standard for public figures—actual
malice. 132 Justice Thomas noted that the actual malice standard, and its
application to public figures, was not grounded in the Constitution’s original
meaning but was instead a product of judge-made constitutional law.133
When the First and Fourteenth Amendments were ratified, defamation laws
merely required a plaintiff prove that a defendant made a false statement
that subjected the plaintiff to contempt. 134 If the plaintiff proved the speaker’s
false statement was motivated by actual malice, the plaintiff could recover
punitive damages. 135
Not only was the burden on the plaintiff lower than the Court in
Sullivan’s actual malice standard when the First and Fourteenth
Amendments were ratified, but libel was a crime subjecting the speaker to
potential criminal liability. 136 A state’s decision to return to criminal
prosecutions for libel would presumably be acceptable to Justice Thomas
as a matter of First Amendment jurisprudence because the rejection of
criminal libel was a “chang[e in] policy judgments, not a sense that [criminal
libel laws] violated the original meaning of the First . . . Amendment.”137
Justice Thomas suggested that the First Amendment would be of no
consequence if a state criminalized libel of a public figure or increased the
damages public figures could collect in libel claims because “common law
deemed libels against public figures to be . . . more serious and injurious
than ordinary libels.” 138 While Justice Thomas recognized there was a
privilege to criticize public figures in the eighteenth and nineteenth
centuries, the “privilege” was the same defense any speaker had to a libel
claim—the truth of the statement. 139 In sum, Justice Thomas posited that
there was no evidence in the historical record that the actual malice standard
accurately reflects the First Amendment’s impact on defamation of a public
figure, and thus it has no place in First Amendment jurisprudence. 140
129
Id.
130
Id. at 676.
131
Id. at 675.
132
Id.
133
Id. at 678.
134
Id.
135
Id.
136
Id.
137
Id. at 682.
138
Id. at 679.
139
Id. at 678, 681.
140
Id. at 682.
5492023] DEFAMING THE PRESIDENT 550
Less than three years later, Justice Thomas again condemned the
actual malice standard, this time dissenting from the Court’s denial of a
petition for a writ of certiorari. 141 The appellant specifically requested, in his
petition, that the Court reconsider the actual malice standard and, in
agreeing with the petitioner, Justice Thomas repeated much of his criticism
from his previous concurrence in McKee v. Cosby. 142 Justice Thomas
posited again that the actual malice standard turns traditional libel on its
head. 143 At common law, Justice Thomas argued, instead of the law placing
a heavy burden on public figures who filed libel claims, libeling a public
figure was a more serious transgression than libeling a private person. 144 In
addition to the lack of historical support for the actual malice standard,
Justice Thomas noted that the harm a defamation claim inflicts on the victim
can be both physical and reputational. 145
Unlike his solo rebuke of the actual malice standard three years
earlier, this time Justice Thomas was joined by Justice Gorsuch, who filed
his own dissent. 146 Like Justice Thomas, Justice Gorsuch began his dissent
by referencing the common law understanding of defamation during the
ratification of the Constitution and Bill of Rights. 147 He observed that the
Sullivan decision introduced a new jurisprudential understanding of the
First Amendment’s impact on defamation almost 200 years later. 148 While
Justice Gorsuch recognized and generally adopted Justice Thomas’s
originalist critique, Justice Gorsuch spent most of his dissent exploring the
changed media landscape in the fifty years since Sullivan and the impact of
that change on the suitability of the actual malice standard. 149
Justice Gorsuch argued that at the time the Court decided Sullivan,
there were relatively few major media companies, and those that existed had
teams of professional reporters and fact-checkers. 150 However, Justice
Gorsuch suggested, over the course of time and with the introduction of new
technology, traditional media outlets have struggled to survive. 151 Anyone
with a social media account can broadcast their thoughts to millions of
people, and those who produce or distribute information are incentivized
monetarily to produce ostentatious content. 152 Justice Gorsuch mused over
whether the Court’s attempt to ensure robust access to the marketplace of
ideas in Sullivan was now a quaint goal as it was announced at a time when
it was primarily professional journalists who had access to the few, major
means of communication. 153 Justice Gorsuch also opined that now, because
141
Berisha v. Lawson, 141 S. Ct. 2424, 2424–25 (2021) (Thomas, J., dissenting).
142
Id.
143
Id. at 2425.
144
Id.
145
Id.
146
Id. (Gorsuch, J., dissenting).
147
Id. at 2425–26.
148
Id. at 2426–27.
149
Id. at 2426–30.
150
Id. at 2427–28.
151
Id.
152
Id. at 2428–29.
153
Id. at 2427–28.551 MITCHELL HAMLINE LAW REVIEW [Vol. 49:2
of judges’ application of the actual malice standard, being utterly
uninformed about the target of one’s criticism has become a defense to
defamation claims. 154 Moreover, Justice Gorsuch suggested that private
figures are too easily pulled into the public figure category. 155 Thus, anyone
with a social media account can defame another person with virtual
impunity. 156 Justice Gorsuch cited these modern developments as reasons
the Court would “profit from returning its attention” toward a reexamination
of whether the actual malice standard continues to serve its “intended
goals.” 157
Standing alone, then-candidate Trump calling for the abolition of
the actual malice standard was legally inconsequential. However, when
coupling the call with President Trump’s history of filing defamation claims
and with Justices Thomas’s and Gorsuch’s positions regarding the actual
malice standard, the implications become more apparent. An originalist
interpretation of the Constitution has undoubtedly carried the day in recent
decisions. 158 Thus, a rejection of the actual malice standard and a return to
an era when libeling a public figure would result in additional legal liability
is perhaps more possible than at any time since Sullivan was decided. If the
actual malice standard were overturned, Presidents would not only be
unencumbered by the higher burden of proving defamation, but, as one of
the most well-known public figures, the damages claimed could have a
chilling effect on critics. Presidents hold an incomparable position within
the constitutional structure—a position so incomparable it raises unique First
Amendment implications for their defamation claims.
V. SEDITIOUS LIBEL AND THE FIRST AMENDMENT
A. The Development of Seditious Libel in English Common Law
Centuries before Sullivan’s actual malice standard, and the First
Amendment itself, governments sought to limit, dissuade, and punish their
critics. 159 In England, from whom the United States adopted much of its
common law tradition, the Monarchy used various forms of regulation and
punishment to silence its critics. 160 The concept of regulating dissident
speech through legal means can be traced to the De Scandalis Magnatum
154
Id. at 2428.
155
Id. at 2429.
156
Id.
157
Id. at 2429–30.
158
See generally Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022); Kennedy
v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022).
See generally JACOB MCHANGAMA, FREE SPEECH A HISTORY FROM SOCRATES TO SOCIAL
159
MEDIA (2022).
160
See David S. Bogen, The Origins of Freedom of Speech and Press, 42 Md. L. Rev. 429,
442–44 (1983).
5512023] DEFAMING THE PRESIDENT 552
statute in the late thirteenth century. 161 While the law punished falsities, the
goal was not to provide redress for the victim of the lie. 162 Instead, the goal
was to prevent speech that caused scandal and disharmony within the
kingdom. 163 Similarly, the crime of sedition that emerged in the mid-
sixteenth century allowed for the punishment of words about public
officials, but not as a means to make whole those whose reputations were
damaged. 164 Instead, the crime arose from a hierarchical view of society and
a fear that subversive speech would disaffect the governed and cause division
between the people and the governors. 165
By the sixteenth and seventeenth centuries, the English government
relied on a variety of laws to regulate and punish speech it deemed
objectionable. 166 Speech that suggested war with the King, contemplated his
death, or aided his enemies was prosecuted as treason. 167 False statements
about the King or his nobles were prosecuted pursuant to Scandalum
Magnatum statutes, and heretical religious beliefs were punished pursuant
to heresy laws. 168 Licensing laws placed prior restraints on publishers and
allowed the government to control and proscribe the printing of
antiestablishment materials. 169 Finally, Parliament made disloyal dissent a
felony in the sixteenth century through the enactment of several statutes.170
In addition to these various statutory authorities, there were three major
common law developments in seventeenth-century England that
contributed significantly to the concept of seditious libel that would exist at
the time of the American Revolution. 171
First, defamatory statements about public officials were
distinguished from, and punished more harshly than, defamatory
statements about private individuals as the former were an affront to the
state. 172 As the King’s chosen deputies responsible for administering his
government, nothing could undermine the legitimacy and authority of the
government more than to have public officials with besmirched
reputations. 173 Second, although there were arguments that truth was a
defense in some prosecutions, it became settled common law that the truth
EDWARD G. HUDON, FREEDOM OF SPEECH AND PRESS IN AMERICA 8–9 (1963).
161
Id. at 8–9.
162
Id. at 9.
163
164
Roger B. Manning, The Origins of the Doctrine of Sedition, 12 ALBION: A Q. J.
CONCERNED WITH BRITISH STUD. 99, 100 (1980).
Id. at 100, 102.
165
See Philip Hamburger, The Development of the Law of Seditious Libel and the Control
166
of the Press, 37 STAN. L. REV. 661, 666–73 (1985).
Id. at 666.
167
Id. at 668–69.
168
Id. at 671–73.
169
Id. at 670–71. However, these felony statutes were viewed by many as too extreme and
170
were not reenacted after they lapsed in the early seventeenth century. Id. at 671.
See id. at 692–93; HUDON, supra note 161, at 10, 13; Hamburger, supra note 166, at
171
712; Manning, supra note 164, at 116.
Hamburger, supra note 166, at 692–93.
172
HUDON, supra note 161, at 10, 13.
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