when donald j. trump said in february that he would <u+201c> open up our libel laws <u+201d> if he became president to make it easier to sue news organizations for unfavorable coverage, the declaration sent shock waves through the media world. but could he actually do it? the simple answer is yes, but it would be complicated. and assuming the established procedures to change laws hold, it would also be extremely difficult. libel is a matter of state law limited by the principles of the first amendment. presidents cannot directly change state laws, so mr. trump would effectively have to seek to change the first amendment principles that constrain the country<u+2019>s libel laws. there are two potential ways he could do this, according to legal experts. one route is through the supreme court. the other is through the constitution itself. the supreme court established the first amendment principles that govern the country<u+2019>s libel laws in 1964, with its unanimous decision in new york times v. sullivan . in that ruling, the court said that public officials had to prove that false statements were made with <u+201c>actual malice,<u+201d> meaning news organizations had to have knowingly published a falsehood or published it with <u+201c>reckless disregard of whether it was false or not.<u+201d> the standard, later extended to include public figures, set a high bar for libel and meant that people like mr. trump <u+2014> both a public figure and soon-to-be public official <u+2014> would have a very, very difficult time winning a libel lawsuit. if mr. trump were to seek to change the libel laws, he would have to get the supreme court to overturn the ruling in times v. sullivan and subsequent cases built on it, or at least chip away at either the definition of <u+201c>actual malice<u+201d> or the characterization of a public official or public figure, said sandra s. baron, a senior fellow at yale law school<u+2019>s information society project and former executive director of the media law resource center. <u+201c>a change in those laws would require the supreme court of the united states taking a new look at what it previously decided and making changes,<u+201d> ms. baron said. <u+201c>i think there<u+2019>s very little, quite candidly, he could do short of getting the supreme court to overrule new york times v. sullivan.<u+201d> the supreme court could overturn the ruling, but it would not be easy. for one thing, libel and the protection of free speech are not, by nature, liberal versus conservative issues. even if mr. trump appoints a conservative justice (or two) who support modifying first amendment principles, these justices would not necessarily find themselves in the majority. <u+201c>this is not a creation of the liberal wing of the supreme court,<u+201d> said stuart karle, an adjunct faculty member at the columbia journalism school and a former general counsel of the wall street journal. the conservative chief justice william h. rehnquist, for instance, wrote the decision in a case in 1988 that extended rules protecting criticism of public figures as free speech. in the case, the supreme court overturned an award in favor of the rev. jerry falwell, a well-known preacher, who had sued hustler magazine over a parody ad that portrayed him as having taken part in a drunken tryst with his mother. short of overturning times v. sullivan completely, the supreme court could roll back related decisions. the court, however, has not shown much interest in libel law in a long time, legal experts say. <u+201c>there has been no active effort by the conservative wing of the supreme court to overturn the principles of new york times v. sullivan,<u+201d> ms. baron said. <u+201c>the court has not taken a libel case in a very long time, and there did not appear to be a majority of the court, and that includes the conservatives, who were actively seeking to overturn the principles of new york times v. sullivan.<u+201d> mr. trump could also try to change libel laws by seeking to amend the constitution itself. altering the constitution, which is rarely attempted, would be arduous, certainly, but not impossible. <u+201c>it<u+2019>s hard to imagine that gaining a lot of traction,<u+201d> ms. baron said. <u+201c>but you know, we live in unpredictable times.<u+201d> of course, mr. trump has been underestimated before, so it is possible that he could muster the support to change libel laws. but even if mr. trump were able to have times v. sullivan overturned, states, particularly those with a major media presence like new york and california, could effectively make the protection available as a matter of state law. the question is whether mr. trump would benefit from changing libel laws. filing a lawsuit would open him up to discovery, which could lay bare details he might rather keep private. it should be noted, however, that mr. trump has a history of filing libel lawsuits , though he has never won in public court, according to a recent report. (even if the libel laws do not change, mr. trump could continue to threaten news organizations with lawsuits.) there is also the possibility that loosening libel laws could affect him in unexpected ways. <u+201c>changing the laws to make it easier to sue would essentially be used to harm him,<u+201d> said george freeman, the executive director of the media law resource center and a former assistant general counsel of the new york times. <u+201c>he<u+2019>s more likely to be a libel defendant than a libel plaintiff.<u+201d> a version of this article appears in print on november 14, 2016, on page b6 of the new york edition with the headline: if trump sought to change libel laws, it would be no easy task. order reprints | today's paper | subscribe
can libel laws be changed under trump?
sydney ember