Donald Trump's Media Threats Are Why a Free Speech Protection Law Is Needed

A message to the U.S. Congress: Pass a federal anti-SLAPP statute.
Jessica Kourkounis/Getty Images

Donald Trump is spending the waning days of his buckling presidential campaign complaining about unfairness in the media. On Wednesday, he took it up a notch by circulating word that he was drafting a lawsuit against The New York Times and Palm Beach Post for detailing the allegations of women who have come forward to accuse Trump of sexual aggression.

The Republican could soon be set to shrug off a half century of jurisprudence that makes it extremely difficult, if not impossible, for a public figure to win a libel claim over stories built on the back of multiple non-anonymous sources. Trump looks to use courts as a glorified public relations vehicle to punctuate his denials and lay shade on the media. It is now time to meet Trump's gambit with a legal reform that would forever make it more difficult for those in the midst of a hissy fit to punish free speech.

Trump is no stranger to the libel laws of this country, having complained about them upon the 2009 defeat in a $5 billion lawsuit about his net worth and this year, having promised to "open up" libel laws should he emerge victorious in his bid for the highest office in the land. 

He's not only witnessed such laws from the plaintiff side but also from the other side. For example, Trump is currently the defendant in an ongoing defamation lawsuit that charges him with bullying a female political consultant by tweeting last February that the woman, Cheryl Jacobus, "begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility."

Trump has filed a motion to dismiss in that case and urged the judge to recognize the broader social context. Among the arguments that Trump's very own lawyer has used to defeat the libel claim is that the "plaintiff, as a national media commentator, had more than sufficient access to the means of counter-argument to address the allegedly defamatory statements."

When it suits Trump, he will rely upon legal precedents that impose a greater burden on public figures, because they have greater opportunity outside the legal system to rebut supposed untruths. But Trump, with his own microphone and the ability to command live television coverage whenever he wishes, sees courts as a way to serve a more vicious endeavor. USA Today has counted an astonishing 1,900 lawsuits in which Trump or one of his companies was a plaintiff. Remember the lawsuit against Bill Maher over a joke that Trump was spawned from an orangutan?

If a lawsuit comes, he'll surely be demanding great damages, but the money sought will not be as important as the public relations aspect of attempting a counteroffensive against the media at a time when a struggling Trump looks to deflect attention away from a tape catching him bragging about grabbing women's private parts. His demand for a retraction from The New York Times reads like a cursory missive, from an attorney, Marc Kasowitz, who knows better but is throwing a Hail Mary under orders from above. The letter doesn't specify which allegations are untrue; it merely issues a blanket charge that statements are "false and defamatory." 

At least 28 states have anti-SLAPP statutes aimed at preventing the purposeful chilling of First Amendment protected rights. Those statutes vary, but typically, when lawsuits are brought where defendants see improper interference with their free speech, judges address the likelihood of the plaintiff's success at an early stage before moving the case any further. If a plaintiff has a lawsuit rejected on an anti-SLAPP motion, the plaintiff often has to pay the defendants their legal fees. Some critics believe certain anti-SLAPP statutes go too far by dissuading meritorious lawsuits by creating roadblocks, like an automatic right to appeal. But the primary advantage of these laws is to more expeditiously address legal actions that have the potential of deterring citizens' most sacred constitutional rights.

As many have recognized, if Donald Trump does bring a lawsuit against media outlets over their coverage of sexual assault allegations, it will hardly be resolved by Election Day. Many speculate that Trump will quickly drop such claims post-election to avoid a discovery process that would investigate the real truth. No one should fail to recognize, however, that the lawsuit itself is a form of bullying intended to give members of the media and other women pause before reporting about this public figure's fitness for office.

The only way to ensure that members of the media throughout the nation continue to be strong participants in civic affairs is to erect downsides to the filing of lawsuits. The U.S. Congress has such an opportunity and can discourage attacks on the First Amendment with a federal anti-SLAPP act that imposes penalties on frivolous lawsuits that cost money to defend and suck up judicial resources. It's time for lawmakers to act.