Trump Is Blowing a Hole in the First Amendment to Save His Own Skin

The election and presidency of President Donald Trump has blown a hole in the foundation of the First Amendment.

Ironically, Trump’s desire to use the First Amendment to shield himself from liability in a defamation suit has exposed the tenuous underpinning of our First Amendment case law.

Summer Zervos was a contestant on Trump’s reality television show, “The Apprentice.” She accused then-presidential candidate Trump of sexual harassment that purportedly occurred in 2007. Trump denied the allegations, and, in his characteristically understated style, tweeted that those allegations, and similar allegations made by other women, were “nonsense,” lies,” “phony” and “100 percent fabricated.” Zervos then claimed that Trump’s comments amounted to defamation.

This is where the clash between defamation laws and the First Amendment begins. Defamation protects people from lies that harm their reputation. A successful claim for defamation basically requires a plaintiff to show that the defendant made a false and defamatory statement that injured her reputation. But the First Amendment can protect our ability to freely express ourselves — even if we lie and hurt someone’s standing in the community.

 Summer Zervos speaks to the press with her attorney Gloria Allred on October 14, 2016 in Los Angeles. Frederick M. Brown / Getty Images

There are a number of defenses to defamation claims. The first is truth: If it is true that Zervos fabricated her allegations against Trump, then his statement explaining that cannot be defamatory. If Zervos can show Trump did, in fact, sexually harass her, then he is making a false statement when he says her allegations are totally fabricated. Simply put, Trump would be lying by calling Zervos a liar. This is why defamation suits provide a backdoor for litigating sexual harassment claims.

A statement of opinion, as opposed to fact, is another defense. So if Trump had said something like, “I think Zervos isn’t telling the full story,” that would clearly be an opinion, and could not be defamatory. This is why political cartoons are not defamatory in the U.S. But here what Trump said comes far closer to a factual statement akin to “she lied.”

In addition, statements on matters of public concern (such as alleged sexual harassment) are typically given heightened First Amendment protection.

This is even more true with respect to political speech. The First Amendment is most concerned about censoring political speech, and for good reason: Without the First Amendment, the government would be tempted to censor its critics. Political speech stands at the core of what the First Amendment protects.

If you want to defend against a defamation suit, it is a great idea to claim you were just expressing an opinion and engaging in political speech. This is exactly what Trump’s attorneys have done. They contend that his comments were “part of the expected fiery rhetoric, hyperbole and opinion that is squarely protected by the First Amendment.”

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