Under Donald’s Standard for Libel, Trump Would Be Guilty Himself of Defaming NBC’s Lester Holt
On Monday morning, Trump campaign manager Kellyanne Conway was confronted with an “untruth” that Trump told about Monday night’s debate moderator Lester Holt. Her response was a doozy. It also clearly demonstrates that Trump has one strict standard when it comes to the media, and one lax standard when it comes to himself when the truth is involved. What I mean is that if Trump held himself to the same standard that he wants to hold the media to when it comes to libel laws, he would be guilty of defaming several people, maybe even Holt.
Last week, Trump falsely accused the NBC host of being a Democrat. “Look, it’s a phony system,” Trump said during The O’Reilly Factor. “Lester is a Democrat. I mean, they are all Democrats. Okay? It’s a very unfair system.” Only thing, that’s actually not true. Holt has been a registered Republican in New York since 2003! When Trump’s campaign manager Kellyanne Conway was confronted with this on Monday morning, she had an amazingly creative response.
“I’m asking about a very specific thing,” Bloomberg Politics host Mark Halperin asked. “He made a factual claim about the moderator who deserves the right to be treated fairly and it was just wrong. And it’s a metaphor for his frequently in public stating things with no basis, that are wrong.”
“We are frustrated by media coverage,” Conway replied.
“We were asking why he lied about Lester Holt.”
“I don’t think he lied,” Conway said.
“Um, I think he did,” said Brzezinski.
“Mika, a lie would mean he knew the man’s party registration,” argued Conway.
“So as president, would he say things that are false without knowing the truth?” asked a disbelieving Halperin
Conway admits that Trump opened his mouth without knowing the real truth about Holt’s registration. As election law Professor Rick Hasen first pointed out, Trump is trying to justify his “untruth” by pleading ignorance.
Sounds like actual malice standard, where reckless disregard as to truth or falsity=knowing falsehood ( since Trump ❤️ libel law) https://t.co/YDXUhvMNAk
— Rick Hasen (@rickhasen) September 26, 2016
So, I highly doubt this would happen but let’s say Holt can some how prove his reputation was damaged by Trump falsely calling him a Democrat. Right now, Holt would probably never win a defamation suit against Trump. In order to win a claim, Holt, who is a public official, must prove actual malice. That means that Trump’s statements were made with the “knowledge that the information was false,” or “with reckless disregard of whether it was false or not.” Trump would probably argue that Holt is journalist with MSNBC, which has a reputation of being more liberal, so therefore it was reasonable to assume that Holt was a Democrat. He would also claim that it wasn’t a statement of fact, but more of an opinion. The case would likely be dismissed before it went very far at all.
However, if we used Trump’s standard when it comes to libel/defamation, Holt may have a chance to win lots of money from the Donald! Trump has repeatedly said, that if he were President, he would “loosen up the libel laws” to make it easier to sue and win money from media organizations. “I have a hard time knowing exactly what Trump thinks about defamation standards, other than that he thinks it should be easier to sue news organizations,” election law Professor Rick Hasen said in an email to LawNewz.com, “ So that probably means relaxing the actual malice standard, making it easier to sue even for potentially inadvertent misstatements of fact.”
Under this standard, Trump’s own inadvertent misstatement of the fact could actually get him in trouble if Holt sued. Listen, I’m sure the commentators below are going to criticize me for writing about a hypothetical situation. My point is to show the hypocrisy in what Trump is saying about defamation/libel laws. I don’t think media organizations should make up stories about public officials to gain web traffic or notoriety. Journalists have a responsibility to seek the truth when they report. However, in New York Times v Sullivan, the U.S. Supreme Court held that the First Amendment protects the publication of statement; even false ones, about the conduct of a public official unless those statements are made “with actual malice.” Under Trump’s standard, the Sullivan case might collapse. We would see media organizations restraining themselves from investigating politicians out of fear that they would be buried in expensive legal claims. That would be a major blow to transparency in government and democracy. I wish he would re-think his approach on this one.