Truth and lies are always at war in an election season. But increasingly, politicians are deploying a troubling new weapon in that battle — the threat of defamation claims against the press. Whether wielded by former President Donald Trump against CNN or Georgia Senate candidate Herschel Walker against the Daily Beast, to take two recent examples, this strategy may result in the exact opposite of what defamation law is designed to do.
Truth and lies are always at war in an election season. But increasingly, politicians are deploying a troubling new weapon in that battle.
Once a relatively rare move for public officials, threatening a libel suit is fast becoming a go-to tool for some who hope to influence public narratives, if not right wrongs. Politicians almost never ultimately win these cases. But they can bolster their own messaging, and indeed are counting on the public’s attention span being too short to care about the actual resolution in court.
After the Daily Beast published an article Monday reporting that Walker had paid for a girlfriend’s abortion — she claimed to have a receipt, a get-well card and a personal check as evidence — Walker condemned the story as false on Twitter. He vowed to immediately “sue the Daily Beast for this defamatory lie,” announcing that the libel case would “be filed tomorrow morning.” Days later, the suit has not yet materialized, and Walker’s attorneys tell reporters they have not yet decided if they will bring the action. (The anonymous woman who says she had the abortion later said she's also the mother of one of Walker’s children.) The actual defamation action may never come, but the headlines have already been made: Walker not only denied the allegations, he said he was willing to prove their falsity in a court of law.
Walker’s threat came just hours after Trump revealed that he, too, was suing the media for defamation. Trump’s complaint, seeking $475 million in punitive damages from CNN, argued that the cable network deliberately used negative labels to describe him in an effort to hasten his political defeat. Trump’s examples included descriptions like “racist,” “Russian lackey,” “insurrectionist,” and comparisons to Hitler. Trump followed up with a statement announcing that in “the coming weeks and months,” he planned to sue “a large number” of other media outlets for defamation for characterizing him and his election denial in unflattering terms.
Legal experts have denounced Trump’s latest suit as flimsy and frivolous. If the case proceeds, a court is likely to find that the statements he’s challenging are all either accurate reporting of his political opponents’ criticisms, protected statements of opinion, or the sort of discussion of a public official that is broadly safeguarded by freedom of speech.
Because of the value the First Amendment places on vibrant public discussion, politicians and other powerful people who sue for libel must clear a high constitutional bar. Trump knows this. Indeed, he has long complained about it, expressing a desire to change the standards so public officials and public figures can more easily use defamation law to threaten or strike back against their critics.
Although Trump’s position appears to have gained some traction with a couple of justices at the Supreme Court, the existing doctrine in the area remains deeply protective of the right of the press and the citizenry to discuss their current or would-be leaders. The odds that any elected official or candidate emerges victorious in a defamation suit are exceedingly low. But again, winning a defamation lawsuit is not the goal here. Announcing it is.
Trump has a longstanding pattern of threatening libel actions that he either does not bring or does not continue.
Trump has a longstanding pattern of threatening libel actions that he either does not bring or does not continue — instead using them as performative indignance. This has proven especially effective with a base that craves validation of their belief that he’s the victim of lies. Some of these suits, like the one threatened against The New York Times after it published an article on his suspect tax schemes, were never filed at all. (Notably, such a suit would have required Trump to provide the kinds of private financial documents he has long fought to keep from the public.) Others, including recent Trump campaign lawsuits against the Times and CNN, have been filed but dismissed by judges in state and federal courts. Trump knows that this is about the court of public opinion more than it is about the court of law.
The latest round of threats and filings this week suggests that Trump and Republicans are doubling down on their new playbook, and it is a dangerous one in a democracy that strives for a common baseline of truth in public discourse. This strategy flips the goal of defamation law on its head: Rather than being a tool for ferreting out actual truth, it becomes little more than a PR mechanism for placing an exclamation point at the end of a politician’s emphatic denial. It solidifies efforts to cast working journalists as the “enemy of the people,” undercutting public faith in their watchdog function and spurring abusive behavior that places them at real risk. Candidates who announce they’ve been victimized by a legally defamatory media can make such a suit the centerpiece of fundraising pleas, as is Trump’s regular practice. Walker’s experience this week suggests that when you repeatedly assert actionable lies are being spread about you, it can galvanize an angry base and produce record campaign cash hauls.
What it doesn’t produce is useful information voters need in the run-up to important elections. Libel suits are simply not great tools for quick-turnaround fact-checking. Indeed, by design, they are lengthy endeavors laden with safeguards and careful inquiries into the evidence of falsity and harm to reputation. There is no chance that the discovery phase of a libel case filed in the first week of October will be complete before Election Day, and so politicians threatening these suits can reap the benefit of righteous stump speeches while not actually proving or divulging any real facts. The real risk is that defamation law is being weaponized to confuse rather than clarify the facts on important matters of public concern.
A lawsuit that is filed or threatened is of course not the same thing as a lawsuit that is won. But this nuance is hard to convey in our political and communications environment, and the public does not always have the energy to follow up and find out whether these suits moved forward and if so, how they were resolved. And public officials crying “defamation” may be banking on it.