Trump wants to make it easier to sue the media, but that almost definitely won't happen

Key Points
  • President Trump says his administration will "take a very very strong look at our country's libel laws."
  • The president has a long record of threatening to sue journalists who write things he does not like.
  • Experts say there is very little Trump could actually change about how libel laws work.
President Donald Trump, flanked by Interior Secretary Ryan Zinke and Secretary of State Rex Tillerson, holds a cabinet meeting at the White House in Washington, January 10, 2018.
Jonathan Ernst | Reuters

President Donald Trump said Wednesday his administration plans to "take a strong look at our country's libel laws," calling the current rules "a sham and a disgrace."

Speaking at a White House Cabinet meeting, Trump said the goal of the effort would be "so that when somebody says something that is false and defamatory about someone that person will have meaningful recourse in our courts."

Trump has a long record of threatening to sue journalists who write things about him that he does not like. Just last week, Trump's lawyers threatened to sue author Michael Wolff over his best-selling book, "Fire and Fury: Inside the Trump White House," which was released on Friday.

Wednesday's comments, however, marked a significant escalation of Trump's attacks on the press over what he calls "fake news."

"Our current libel laws are a sham and a disgrace, and do not represent American values or American fairness," Trump said, reading from prepared notes.

"So we're going to take a strong look at that. We want fairness. You can't say things that are false, knowingly false, and be able to smile as money pours into your bank account ... I think what the American people want to see is fairness."

Trump tweet: We should have a contest as to which of the Networks, plus CNN and not including Fox, is the most dishonest, corrupt and/or distorted in its political coverage of your favorite President (me). They are all bad. Winner to receive the FAKE NEWS TROPHY!

The remarks were startling for a few reasons. One is that they may have been first time that Trump's desire to change the nation's libel laws made it into the president's official written remarks.

Equally striking was Trump's attempt to couch defamation laws in the rhetoric of his populist political movement. According to the president, the current libel laws "do not represent American values or American fairness."

But unless you work in journalism, Hollywood or politics, it is unlikely you will ever have to learn much about defamation law, a patchwork of state laws that govern the crime of publishing deliberately false statements about someone with the intent of damaging that person.

A White House spokesman did not respond to questions from CNBC about what law Trump might actually want to change. Nor did he identify what, exactly, the administration will be "taking a very very strong look at."

That official silence, however, could be due in part to the fact that there is little Trump could actually do to change how libel laws work.

"Trump is not changing — and he never will change — the libel laws in this country, despite his rhetoric," said Richard Roth, a New York-based white-collar litigator and founder of the Roth Law Firm. "These are laws that originated hundreds of years ago in England."

Today, Roth said, "libel and slander are state court causes of action, not federal laws. So there actually is no federal statute that Trump could try to get Congress to rewrite."

Additionally, no single state could change its laws to make it easier for public figures like Trump to win libel suits against the press. That standard derives from a 1964 Supreme Court ruling, New York Times Co. v. Sullivan.

"He's trying to usurp the judiciary, and it's not going to work," Roth said.

"If there is any likely change to libel-related laws as a result of Donald Trump the individual or Donald Trump the government official, it is likely to come in the form of increased protection for libel defendants who face a potential increase in frivolous lawsuits of the type he has filed (and lost) in the past," Kevin Goldberg, a First Amendment attorney at Fletcher, Heald & Hildreth, told Poynter.

For now, Roth said, Trump's threat to change libel laws is just "another silly declaration" from the White House.