Stop me if you’ve heard this one before: President Donald Trump is threatening a multibillion-dollar defamation lawsuit against one of his critics.
At first glance, Trump’s $5 billion threat against the Center for American Progress, made public last week, looks like more of the same. Trump has already sued multiple news outlets over reporting he says defamed him.
But this latest threat is different, and even more dangerous.
The alleged defamation in a report by CAP isn’t about Trump’s private conduct from before he was president, like his lawsuits against The Wall Street Journal or The New York Times. It’s not about a specific statement made by Trump personally, like his lawsuit against the BBC. It’s about whether his government’s policies are as effective as the Trump administration claims they are.
Specifically, Trump threatened to sue CAP over its report concluding that the administration’s deployment of the National Guard to various cities has not reduced crime. The report argues that violent crime was already declining and that the administration is using that preexisting trend to prove the efficacy of sending troops to American cities.
This kind of analysis and argument is central to political debate. Think tanks, journalists, advocacy groups, and regular people make these kinds of arguments about presidents and administrations every day. Whether a particular policy is effective or an administration is being honest about its policies is the bread and butter of reports and analysis from journalists and civil society organizations on all sides of the political spectrum.
By attempting to turn criticism of government policy into a personal defamation claim, Trump’s threatened lawsuit against CAP undermines fundamental First Amendment protections. It also risks silencing the very analysis and debate about the decisions of government that are at the heart of our democracy.
The principle that government officials cannot use the law to punish criticism of the government has deep roots in U.S. history. The Sedition Act of 1798 is a particularly infamous example of a time that the government tried to ignore this prohibition.
That law — which criminalized printing “false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States” — provoked a furious reaction from James Madison, the chief author of the First Amendment. Before it was allowed to expire a few years later, the Sedition Act was used in partisan prosecutions of journalists and political opponents of the White House.
More than 150 years later, the Supreme Court acknowledged that shameful and unconstitutional history in New York Times v. Sullivan. That case is best known for establishing the “actual malice” standard for defamation claims brought by public officials, which helps protect against officials using defamation law to suppress criticism of government.
But Sullivan also established that the government itself cannot bring defamation suits, and it emphasized that public officials can’t evade that rule simply by bringing the lawsuit in their own names.
Trump’s threatened lawsuit against CAP runs smack into those principles. It’s true that Trump threatened to sue CAP in his individual capacity, claiming its report has defamed him personally. But CAP’s report is directed at what the Trump administration is doing. The First Amendment forbids the government from suing CAP for saying that its policies are ineffective. Trump shouldn’t be able to accomplish the same result by recasting that criticism as statements that defame him personally.
Otherwise, virtually any disagreement over government policy could become a potential defamation claim — no matter if it’s being threatened against the left or the right. Should President Joe Biden have been able to sue the Heritage Foundation for defamation over its claims that he made false statements about illegal immigration or voter ID laws? Of course not.
If the president can turn a claim that “your policy isn’t working the way you say it is” into a personal defamation lawsuit, the chilling effect would extend beyond think tanks. Journalists who analyze government policy would face the same threat, as would op-ed writers, academics, and even ordinary citizens.
If Trump actually follows through and sues CAP, the courts should reject it out of hand. To do otherwise would transform defamation law into something it was never meant to be: a modern-day Sedition Act, giving the government the power to silence its critics.
