Donald Trump Wants To Sue The First Amendment. He'll Lose.

He vowed to "open up those libel laws," whatever that means.
Open Image Modal
Suing against press freedoms: a big loser.
LM Otero/ASSOCIATED PRESS

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:

Editor's note: Donald Trump is a serial liarrampant xenophobe, racist, misogynistbirther and bully who has repeatedly pledged to ban all Muslims -- 1.6 billion members of an entire religion -- from entering the U.S.

 

Our 2024 Coverage Needs You

As Americans head to the polls in 2024, the very future of our country is at stake. At HuffPost, we believe that a free press is critical to creating well-informed voters. That's why our journalism is free for everyone, even though other newsrooms retreat behind expensive paywalls.

Our journalists will continue to cover the twists and turns during this historic presidential election. With your help, we'll bring you hard-hitting investigations, well-researched analysis and timely takes you can't find elsewhere. Reporting in this current political climate is a responsibility we do not take lightly, and we thank you for your support.

to keep our news free for all.

Support HuffPost

Before You Go

Celebrities Who Have Endorsed Trump
(01 of08)
Open Image Modal
Political pundit Ann Coulter threw her support behind Trump when she was a guest on “The Eric Metaxas Show.” (credit:Jonathan Ernst / Reuters)
(02 of08)
Open Image Modal
Former WWE pro wrestler Hulk Hogan not only endorses Trump, but he also told TMZ last year he wants to be Trump's running mate.

Asked which presidential candidate he most wanted to fight, Hogan responded, “I don’t want to be in the ring with any candidates. I want to be Trump’s running mate.”

“Did you hear that? Vice President Hogan?” he added.

The WWE cut ties with Hogan last July after a video of him using racial slurs surfaced online.
(credit:Gabe Ginsberg/Getty Images)
(03 of08)
Open Image Modal
Aissa Wayne, daughter of movie icon John Wayne, has thrown her support behind Trump's presidential bid. She made the endorsement at the John Wayne Birthplace Museum in Iowa in front of a life-size, gun-toting figurine of The Duke. (credit:Aaron P. Bernstein via Getty Images)
(04 of08)
Open Image Modal
Jerry Lamon Falwell Jr., the president of Liberty University and the son of late televangelist Jerry Lamon Falwell, endorsed Trump days before the pivotal Iowa caucuses.

“In my opinion, Donald Trump lives a life of loving and helping others as Jesus taught in the great commandment,” Falwell said. “He cannot be bought, he's not a puppet on a string like many other candidates ... who have wealthy donors as their puppet masters.”

When the presidential hopeful visited Liberty University's campus, Falwell effusively compared Trump to his own father.

Other evangelical Christians have since voiced their frustration with Falwell's endorsement, citing Trump's alleged sexual affairs and claims of spousal abuse.

John Stemberger, president of the Florida Family Policy Council, told Politico in a statement that Trump was "the most immoral and ungodly man to ever run for President of the United States."
(credit:Chip Somodevilla via Getty Images)
(05 of08)
Open Image Modal
Tila Tequila, a reality TV star and flat Earth conspiracy theorist who once claimed to be a "robotoid clone," will be voting for Trump this year.

In the middle of a transphobic Twitter rant about Caitlyn Jenner, she tweeted, "I only want @realDonaldTrump to win so to smite some of my enemies, kill the politically correct, and basically make America great again!"

Tequila was recently kicked off "Celebrity Big Brother" for praising Adolf Hitler and posing in Hitler and Nazi-inspired outfits on social media.
(credit:Karwai Tang via Getty Images)
(06 of08)
Open Image Modal
The self-proclaimed "toughest sheriff in America," Joe Arpaio of Maricopa County, Arizona, has endorsed Trump. (credit:Laura Segall / Reuters)
(07 of08)
Open Image Modal
Former baseball player John Rocker told The Daily Caller that Trump is "that guy" for America.

“I think [Trump] has really woken America up," Rocker said. "I’m probably as disheartened as everyone else is, as Trump supporters seem to be, with the status quo and the glad-handing politicians and the soundbite politicians always looking for the right comment to make and walking that fine line, trying to make every single faction out there who could be a possible voter, don’t make anybody mad and wear kid gloves.”

Rocker once told Sports Illustrated that New York City was full of “degenerates,” and said he would rather retire than ride the subway with “some queer with AIDS” and “some dude who just got out of jail for the fourth time.”

He's also sold shirts that read "Speak English" on his website.
(credit:Sporting News Archive via Getty Images)
(08 of08)
Open Image Modal
Former Alaska governor and 2008 vice presidential candidate Sarah Palin endorsed Trump for president while the two were in Iowa ahead of the caucuses.

"The status quo has got to go, otherwise we're just going to get more of the same. And with their failed agenda, it can't be salvaged. It must be savaged. And Donald Trump is the right one to do that," Palin told a crowd of Trump supporters.

"He builds things, he builds big things. Things that touch the sky. Big infrastructure that puts other people to work. He has spent his life looking up and respecting the hard hats and the steel-toed boots and the work ethic that you all have within you," Palin said. "This self-made success of his, you know that he doesn't get his power, his high, off of opium [OPM] -- other people's money -- like a lot of dopes in Washington do. They're addicted to opium, where they take other people's money and then their high is getting to redistribute it, right?"

While commenters panned Palin's endorsement as "word salad," her support means more tea partiers and evangelicals might join her in the Trump camp.
(credit:Aaron P. Bernstein via Getty Images)