Republican presidential front-runner Donald Trump threatened on Friday to go after the press the best way he knows how: with a lawsuit.
But his legal threat this time could be read as a threat on the First Amendment itself, which means that if he tries to follow through on it, he's likely to lose, and lose badly.
"I'm going to open up our libel laws, so when [newspapers] write purposely negative and horrible and false articles, we can sue them and win lots of money," Trump said Friday at a rally in Fort Worth, Texas, according to Politico. "When The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected."
"We're going to open up libel laws," he said, "and we're going to have people sue you like you've never got sued before."
Trump, who on Friday also picked up a ringing endorsement from his onetime rival, New Jersey Gov. Chris Christie (R), has railed against the media too many times to count. And he's certainly proven over the years that he's not afraid to sue whomever and whatever he wants. On and off the trail, against enemies big and small, he's always maintained a brand that involves threats of legal action -- although a lot of those threats ultimately go nowhere.
However, his remarks on Friday suggest he may not know that libel laws -- which allow litigation against the press for defamatory publications -- are the province of the states, and that as president there'd be very little he could do to change them.
There's also this little thing called the First Amendment, which states in no uncertain terms that "Congress shall make no law... abridging the freedom of speech, or of the press."
But who knows? Maybe a Trump presidency would be a truly transformative experience. Maybe he'd be able to strong-arm Washington lawmakers into passing a Trump-friendly, anti-media law. Bad news, though: It would still be struck down as unconstitutional.
That's not to say you can never sue the press. It's just that the First Amendment, thanks to the Supreme Court's reading of it in the landmark 1964 case New York Times Co. v. Sullivan, has made it extremely difficult for public officials to do so. That's been the law of the land for over 50 years.
As a unanimous Supreme Court put it in the 1964 case, it should be hard for American public figures to sue the press, because that reflects "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." So Trump is out of luck.
(Side note: The late Justice Antonin Scalia, as legal eagle Mike Sacks points out, was not a fan of the outcome in New York Times Co. v. Sullivan. Maybe the real estate mogul's nominee-in-waiting will favor overruling it once and for all.)
But all is not lost. Maybe Trump wants to amend the Constitution and strip it of its press-freedom protections. Maybe he wants to restore that which America took away when it sought freedom from British tyranny. If that's the case, then this response from Ken White, a staunch First Amendment lawyer, is all you need to know: