“One of the things I’m going to do if I win,” Donald Trump said last year, is “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.”
It was a potentially chilling attack on the press — except for the fact that it is clearly unconstitutional. Libel is typically a state law tort that the federal government plays little role in shaping. And, in any event, the Supreme Court put strict limits on when public figures could bring malicious libel suits against the press in its landmark New York Times. v. Sullivan case.
Trump, however, now wants to put someone on a powerful federal court who claimed that New York Times probably was “wrongly decided.”
John K. Bush is a Kentucky lawyer and the president of the Louisville chapter of the Federalist Society, a conservative legal group that plays a major role in selecting Trump’s judicial nominees. Trump nominated Bush to serve on the United States Court of Appeals for the Sixth Circuit.
At a 2009 panel hosted by the Federalist Society, Bush gave a rambling explanation of originalism, the idea that the Constitution may only be interpreted by looking at the original meaning of its words at the time they were ratified. During the course of this explanation, however, Bush both endorsed originalism as his preferred method and named Sullivan as an example of a case that is not consistent with this method.
Sullivan held that the Constitution “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct” unless the person accused of defamation acted “with knowledge” that they were making a false claim or “with reckless disregard of whether it was false or not.”
Bush, however, told the Federalist Society gathering that “from an originalist perspective, that New York Times v. Sullivan probably wasn’t correctly decided” because “at the time of the founding, it was recognized under libel law that if you have a false statement it didn’t really matter if you had a malicious intent or not. You were entitled to recovery — and that was for the highest official in the land down to the regular citizen.”
Under this rule, a reporter who makes a minor misstatement about Trump, even if they did so after rigorous and professional reporting, could be hauled into court by the man who occupies the White House.
Bush’s remarks at the Federalist Society panel were first reported by the Alliance for Justice, a liberal advocacy group focused on the judiciary.
In fairness, Bush did make vague remarks during the panel which suggested that judges may, in some cases, be bound by past decisions — although his comments on this matter were brief and difficult to parse. “I think any originalist has to recognize that there are precedents that have to be recognized and respected,” Bush said. Though he added that “that doesn’t mean that a precedent can’t be overturned.”