Trump's First-Amendment Nemesis Explains How He'll Defend Any Defamation Lawsuits (Q&A)

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After then-candidate, now President-elect Donald Trump threatened to sue The New York Times and his sexual assault accusers for defamation in October, attorney Ted Boutrous turned to Twitter to tell the paper, and anyone else finding themselves in a similar situation, that he'd take on any free speech case brought by Trump, pro-bono.

While the move undoubtedly gained attention, it's important to note that Boutrous is not just any attorney. He's the global co-chair of Gibson, Dunn & Crutcher's litigation group and a passionate and widely respected defender of the First Amendment.

An Oct. 22 tweet reminding people Boutrous is serious about his offer has received more than 2 million impressions and 20,000 likes. Now, after the election, he tells The Hollywood Reporter why he's willing to do it and how much of a threat Trump really could be to free speech and the press. 

What prompted you to tweet that you’d take on pro-bono free speech cases against Donald Trump?

I found it to be so extraordinary and truly outrageous when during the campaign we had someone running to be president threatening to sue news outlets and individual women. The First Amendment is intended to allow people to have the widest possible range of speech so they can exchange information and people can decide to elect. It was astounding to see someone make such threats while he was running.

Has anyone reached out to you for legal help yet?

I already have done work for a number of individuals and organizations. I do think my indicating I would help, and other lawyers coming forward, has had a positive effect on people knowing there are lawyers who will be there to defend them. So I feel good about that, but there’s a lot more work to do.

Without showing your hand too much, what would the key strategy be in winning these suits?

The key strategy if Mr. Trump were to sue for defamation would be first to depose him, interrogate him under oath. The legal standards are so protective of free speech in this context. He would have to demonstrate falsity, which would open him up to discovery. In addition, the actual malice standard of New York Times v. Sullivan would apply. So he’d have to prove knowledge of falsity or reckless disregard for the truth. I think a lawsuit under those circumstances should be very unattractive to Mr. Trump and his lawyers.

Have you seen anything like this before?

I don’t know if it’s totally unprecedented, but at least in modern times the president has not unleashed a lawsuit on a citizen while in office. I think the deterrent for a president suing is once you do that you’re really undermining your efforts to slow down and stay other cases. It would be difficult for a President Trump to say ‘Gee, I can’t go to trial on Trump University’ while he is launching other lawsuits.

Do you think they’ll settle that case before trial?

The judge in that case has encouraged settlement talks. That in itself would be pretty extraordinary if the president-elect settled a fraud lawsuit, but going to trial probably isn’t the greatest option for him.

Were you surprised that someone who starred on a reality television show would be so vocal against the media as a presidential candidate?

I’ve never seen anything like it. It’s this bizarre combination of someone who has benefited from media coverage, has engaged in media coverage for decades, clearly recognizes the benefits of a free press — yet very early on in his campaign, he started attacking the media in ways that weren’t accurate. Then we had his declaration that he wanted to open up libel laws. During some of his rallies he would incite the crowd against reporters. Then, on top of that, he threatens to sue The New York Times. It is very disturbing to have that person take over as president. There are ways to injure the First Amendment and its values. There are other weapons the president can deploy to squelch free speech and the press.

What are some of those weapons?

Subpoenas to reporters, going after whistleblowers, having an administration that’s even worse at responding to Freedom of Information Act requests, denying press credentials to news organizations, seeking prior restraints to stop publication of newsworthy information, and continuing to attack journalism and undermine its legitimacy from the bully pulpit of the presidency. We need vigorous, aggressive journalism as a democracy. The framers of the Constitution knew that people need to have accurate, factual information. If you have the president telling people that the best journalism in the world is wrong and evil, that is very harmful.

Do you consider Trump a threat to the First Amendment? Should journalists be worried?

From everything he has said and done, both before and while he was running, he has made clear he is a threat to First Amendment values and he doesn’t appreciate what the First Amendment is about. The constitutional protections in the libel context, I think are safe. They were recognized by the U.S. Supreme Court. NYT v. Sullivan has been in place since the 1960s and the court hasn’t stepped back from those strong protections since. The danger is, just the mere threat of a lawsuit can chill speech. It can be expensive. It can take an emotional toll. It can harm someone’s life even if they’re right and the person suing them has no chance of winning. You don’t even really have to change the law if you’re willing to bring baseless lawsuits as an intimidation tactic. That’s what struck me during the election. Legal threats to silence citizens is a terrible affront to First Amendment values. I have a lot of faith in the courts and really in people to understand how important it is to fight back.