The Republican frontrunner has cast a pall over the first amendment by vowing to ‘open up our libel laws’ to punish publication of ‘purposely negative stories’

This article is more than 4 years old

This article is more than 4 years old

Donald Trump has pledged to change the libel laws in a way that could undermine the first amendment and the freedom of the press.

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Speaking at a rally in Fort Worth, Texas, on Friday, shortly after accepting an endorsement from New Jersey governor Chris Christie, Trump pledged if elected president to “open up our libel laws so when [newspapers] write purposely negative stories … we can sue them and make lots of money”.

This move, he said, would mean that “when the New York Times or the Washington Post writes a hit piece, we can sue them”.

Since the American revolution, freedom of the press has been a key principle in American public life, with truth long established as an absolute defense to any accusation of libel.

The first amendment states that “Congress shall make no law … abridging the freedom of speech, or of the press”. It is a foundation stone of democracy in the United States.

This was most recently asserted by the supreme court in 1964, in a unanimous decision in New York Times v Sullivan. The court held that any public figure suing for libel must prove that a defamatory statement was made with actual malice, “with knowledge that it was false or with reckless disregard of whether it was false or not”.

Trump seems intent on making US libel law more like the far more oppressive free-speech laws in the UK. There, the burden is on the defendant to prove the truth of every statement made. A plaintiff does not need to show any actual harm.

In the US, the burden is on the plaintiff. Under New York Times v Sullivan, a plaintiff must show actual malice as well.

Asked on Friday if the candidate thought the supreme court case had been decided wrongly, the Trump campaign did not immediately respond.

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A Trump administration could appoint supreme court justices pledged to undermine the first amendment. However, it is unlikely that any credible judge or legal scholar would endorse Trump’s views on the freedom of the press.

Trump has long had a tortured relationship with the media. Although he goes out of his way to seek publicity, he calls reporters out at his rallies, often by name, as “dishonest”.

He also has defended dictators like Vladimir Putin from accusations of killing journalists, saying there is no proof. Russia has one of the least free presses in the world. According to politifact.com, at least 34 journalists have been killed there since 2000.