President Trump Suggests Changing 'Libel Laws,' Potentially Challenging The 1st Amendment

WASHINGTON, DC — President Trump attacked the New York Times on Twitter Thursday, calling the paper "failing" and saying it has "disgraced the media world." To cap it off, he briefly asked his Twitter audience, "Change libel laws?"

"Libel" is the written or publicly broadcast form of defamation, which is the intentional communication of falsehoods that can damage someone's image.

States have their own libel laws, but the president is not in a position to have these changed. At the federal level, there is one major impediment to "opening up libel laws," as Trump put it during his campaign: the First Amendment.

But it's not exactly clear what Trump thinks the New York Times has done that constitutes libel. In the tweet, he links to a New York Post piece which criticizes the Times for not providing sufficient context in its coverage of Trump regarding his associates' ties to Russia and his claims that President Obama wiretapped Trump Tower.

Even if this could be characterized as bad or sloppy journalism, this would not even come close to "libel," which by definition must include a false claim.

On the other hand, Trump's accusation that his predecessor wiretapped him is more plausibly a case of libel. All evidence so far indicates that this is flatly false; the FBI director and NSA director both denied that any search tap occurred, and the evidence pointed to by Trump's defenders suggests that any surveillance of Trump's associates would have been incidental, not intentional.

Still, it would be very hard to charge Trump of libel on these grounds; a prosecutor has to decisively show that defamatory statements were done out of "actual malice" — that means the defendant must have known the statement was false or acted with negligence with regard to the truth — at the time of publication. Trump gets the same legal protection as any newspaper in the country, in that way.

Even if when it's true that someone charged with libel acted with "actual malice," this is very hard to prove.

If Trump were shown to be relying on a notoriously deceitful and disreputable outlet to support his wiretapping claims, that might provide some evidence that he had no regard for the truth. Unfortunately for Donald Trump, his spokespeople have tried to defend his accusations of wiretapping by citing the untrustworthy and failing New York Times.

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