Trump can beat the media in public opinion, but courts are another matter

Donald Trump’s surprising election victory in 2016 came as a result of his ability to win enough voters in the court of public opinion. In the free-for-all of a national election, emotion reigns over reason. Broad claims and promises can overwhelm facts. And, the only rules in campaigning are that there are no rules. That approach can help win an election and perhaps even help in actual governance.

In a real court, however, the procedure is necessarily different. Arguments are won on logic and evidence, not force of personality or heightened passions. Trump can sometimes sway the general public with his aggressive oratory, but that strategy will fail in an actual court of law. This is why Trump would be well-advised to keep his rhetorical battles in front of the public and out of legal circles.

Trump’s recent power play trying to stop publication of Michael Wolff’s “Fire and Fury” book was a disaster. The “cease and desist” letter from Trump’s private attorney, Charles Harder, was laughable. There was no way publisher Henry Holt was going to hold back release of the controversial book, let alone apologize for its contents.

{mosads}John Sargent, CEO of Macmillan, the parent company of Henry Holt, explained the company’s response in a letter to Macmillan employees. “We will not allow any president to achieve by intimidation what our Constitution precludes him or her from achieving in court,” Sargent wrote. Indeed, Trump’s cease and desist tactic was a clear attempt at prior restraint, the very thing constitutional framers were prohibiting when they created a free press.

Wolff’s book, as Harder claimed, might well have false and defamatory statements about Trump in it. Trump, however, is hardly powerless to respond as he likes to whatever content he finds to be in error or unfair. At a moment’s notice, Trump can put himself in front of television cameras that will beam his own perspectives to the entire world. Or, he can tweet out a point-by-point dismissal of Wolff’s attacks. This is the real court of public opinion, allowing competing narratives to float around and letting the citizens decide for themselves whom, if anybody, they want to believe.

Trump has now doubled down on his legal strategy by again raising concerns about libel laws. He first indicated his displeasure with current provisions of libel actions during his presidential campaign. He renewed his pledge to address libel laws in a recent press conference at Camp David, saying “The libel laws are very weak in this country.” At last week’s cabinet meeting, Trump said current libel laws are a “sham” and a “disgrace.”

Trump believes “a person” who has been falsely defamed should have “meaningful recourse in our courts.” Actually, a private “person” already has such avenues. A public figure, however, as the Supreme Court has determined, also has such recourse, but must prove the news outlet acted with malice in the reporting process. That’s because public figures must be held more accountable for their actions and typically have sufficient access to public dialogue to state their own case in front of the citizenry.

Trump has taken full opportunity during his campaign and first year in the White House to verbally trash the media in his public appearances and through social media. That’s not necessarily a good thing in the broader scheme of public dialogue and national stability, but he has every First Amendment right to criticize the media as he likes. That’s the rough and tumble world of the public arena. 

Trump believes these attacks on the media help him win on the rhetorical battlefield. That might or might not be true, but the umpiring on that playing field is done by citizens, some of whom clearly agree with Trump. The umpiring done in courtrooms, however, is done by judges who follow First Amendment precedents established over the years by the Supreme Court. Trump can’t win in that arena and would be well-advised to stay out of it, for his own good and that of the First Amendment.

Jeffrey McCall (@Prof_McCall) is a professor of communication at DePauw University.