Trump's media threats and America's tricky balance on freedom of speech

When a parade of women came forward in the last couple of weeks to say that Donald Trump had kissed or groped them against their will — just as Trump had bragged on that infamous Access Hollywood tape — he was livid. How on earth could news organizations report these allegations when Trump denied them? Sure, he'd sue the women (just to show them who they're messing with), but shouldn't we change the law so the media can't get away with printing mean things about a guy like Donald Trump?

Trump has talked before about his desire to sue media organizations. "I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money," he said in February. But last weekend he gave some more detail, explaining how he'd like to model our libel laws on those in Great Britain. And in the process, he's showing that here in America we've gotten the tricky balance inherent in freedom of speech exactly right. Here's what he said:

Nobody believes in freedom of the press more than Trump, just like nobody respects women more than he does, and he's the least racist person you've ever encountered. Truly a man of superlatives. But you will be shocked to learn that Trump does not have a firm grasp on the differences between British and American libel laws. In fact, when he says that you should be able to sue when someone says something defamatory about you "on purpose, to injure people," he's inadvertently describing what we have in America.

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The most critical difference between American and British libel law is that in Great Britain, if you write something critical about me and I decide to sue you, I don't have to prove that you libeled me; instead, the burden of proof falls on you to demonstrate that you didn't. This imposes an incredibly high burden on defendants, which is why Britain is a common destination for "libel tourism," where someone who wants to shut down criticism sues in British courts, whether they or the defendant are British, or whether the writing in question was even published there.

Right now there's a film playing in theaters that demonstrates the absurdity of this system. Denial dramatizes the case of historians Deborah Lipstadt and David Irving; Irving sued Lipstadt for libel in British courts because she wrote that he was a Holocaust denier, which he most certainly is, even if his version of denial is more complex than that of those who just claim the whole thing was a hoax. In order to defend herself (at a great expense of money, effort, and time) Lipstadt essentially had to prove in court that the Holocaust happened. While Lipstadt won in the end, the fact that the trial took place at all demonstrates just how pathological the British system is.

There's a bargain involved in freedom of speech, one that says that because we want an unfettered exchange of ideas, we're going to have to tolerate some unpleasant things. If I'm going to be free to say whatever I want, I'll also have to put up with you and your stupid opinions. If we don't want the government saying some beliefs are acceptable and others aren't, it means we'll have to tolerate Nazis and Klansmen and all manner of offensive speech. By its very nature, freedom of speech is messy and sometimes unpleasant.

Similarly, if we're going to have a free press, journalists have to be able to say critical things about politicians. That's why the standard we use in America for what kinds of reporting can subject you to a lawsuit comes down to what is called "actual malice," a standard established in a 1964 Supreme Court case. It means that if a public figure like Donald Trump wanted to sue The New York Times for writing that women are accusing him of sexual assault, he'd have to demonstrate in court that either the Times knew what it was writing was false, or acted with "reckless disregard" for the truth.

In that particular case, it doesn't even come close. Trump and these women tell different stories; news organizations simply reported that the women were making the allegations (unquestionably true), and also allowed Trump to dispute them.

Judging by what he's said about this story and so many others, Trump's standard of the difference between what's true and what's false comes down to whether a story is complimentary toward him or not. If it isn't, the story is necessarily outrageous and false, the reporter is a liar and a sleaze, and the laws ought to allow him to sue the news organization for every dime it's worth. Indeed, Trump has sued journalists before, without success. He sued a biographer for saying that his net worth was substantially lower than he claimed (and lost), and he even sued an architecture critic for writing that a building he proposed to erect was "one of the silliest things anyone could inflict on New York or any other city" (that one got summarily tossed out of court).

Now try to imagine what would happen to American journalism if Trump had his way. Every time a politician or celebrity didn't like something someone said about them, they could sue, and in short order no one would want to criticize anyone famous or powerful for fear they could be hauled into court. Free expression would be crippled, and our debate about critical issues would grow smaller and smaller, as the powerful could use the courts to silence critics whenever they pleased. It's one of Trump's more hideous ideas.

If nothing else, Trump has reminded us why our model of free speech works so well — even if it's raucous, unwieldy, and at times upsetting. We've chosen more freedom and more openness, and that's part of why our democracy is so strong. Even Donald Trump can't change that.