Sparking mixed reactions regarding its veracity, Michael Wolff’s book Fire and Fury generated enough demand to prompt an earlier release date on January 5, 2018. Much to the President’s chagrin, the book includes allegations that depict President Donald Trump, his family, and his administration as incompetent and divided. While the book’s publishing company, Henry Holt & Co., claims that the book contributes to the current national discourse, the White House’s response denied Wolff’s credibility as an author and columnist.
The White House has since issued a cease-and-desist letter to Henry Holt to prevent further publication and dissemination, and to Steve Bannon, President Trump’s former Chief Strategist who is quoted in the book, to preclude further violation of a confidentiality agreement. President Trump has now added Fire and Fury to his ongoing campaign against “fake news” and renewed calls for changes to current libel laws that he argues are not doing enough to protect victims of libel. If President Trump decides to follow up the cease-and-desist letters with legal action, his legal team must overcome court precedence that refutes potential legal action against the book.
The United States Supreme Court found in New York Times v. Sullivan that the First and Fourteenth Amendments do not allow for an award of damages for false statements made about official conduct unless there is actual malice or a reckless disregard for whether the information being shared is false. As the Court asserted, libel must be measured within the parameters of the First Amendment’s protections, and a presumption of malice cannot be created to circumvent the United States Constitution. The Supreme Court has further defined reckless disregard for the truth as a defendant having serious doubts about the truthfulness of the statements in the defendant’s publication.
President Trump’s appointment to the Supreme Court, Justice Neil M. Gorsuch, recognizes the authority and importance of New York Times v. Sullivan decision, which requires a higher standard of proof of actual malice and guarantees special protection for the media in coverage of public officials. Justice Gorsuch has also noted in a Tenth Circuit opinion that libel law seeks to protect an individual’s honestly earned positive reputation, which raises the question of whether the publication of Fire and Fury caused any quantifiable damage to President Trump’s reputation. This standard may be what President Trump seeks to change about current libel laws.
Over the course of his presidential campaign and the first year of his term, President Trump has appeared to apply the First Amendment selectively, citing religious freedom as justification for denying medical and civil services while criticizing peaceful expression of views that oppose his. Unlike his subjective interpretation of the First Amendment, Article 19 of the Universal Declaration of Human Rights recognizes that all individuals have the right to freedom of expression, which includes the right to seek and disseminate information and ideas through any channel. This right is affirmed by Article 19 of the International Covenant on Civil and Political Rights, which further specifies that the media through which this right may be exercised includes writing, print, and art.
Article 19 of the International Covenant on Civil and Political Rights also states, however, that this right carries an obligation as created by law to respect the reputations of others. As the New York Times explained in response to President Trump’s demand for a retraction following reported sexual misconduct allegations, President Trump’s own past comments regarding his views, conduct, and relationships have compromised any positive reputation he retains. Thus, there has yet to be any demonstrable tarnishment to President Trump’s reputation caused by Wolff’s writings.
Prior to the 2016 presidential election, doubts over the effect of Justice Gorsuch’s appointment to the Supreme Court caused speculation about potential stricter libel laws under President Trump’s administration. In 1988, the relatively conservative Supreme Court found that public officials could not recover damages arising from publications that depict officials in a negative light unless they could prove that the statements were false and made with actual malice. Thus, neither Justice Gorsuch’s conservative leanings nor his expressed stance on libel laws indicate that his appointment to the Supreme Court will be enough to change libel laws. President Trump will need far more than the current debate over the accuracy of Fire and Fury to effect the sweeping changes that he has been threatening to make since he entered the political sphere.