During a campaign rally in Texas, in February 2016, Republican presidential primary contender Donald Trump laid out a key prong of his vision for making America great again: “[O]ne of the things I’m going to do, if I win . . . is open up our libel laws, so when they write purposely negative and false articles, we can sue them and win lots of money.”
Trump’s followers, naturally, responded with raucous applause.
In Murder the Truth, David Enrich, a business investigations editor for The New York Times, explores how Trump’s declaration “rapidly metastasized into a political and legal movement, gaining the support of at least two Supreme Court Justices and many other judges and lawmakers.”
Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful
By David Enrich
Mariner Books, 336 pages
Release date: March 11, 2025
The bedrock case on which U.S. libel law rests is the Supreme Court’s 1964 ruling in New York Times Company v. Sullivan. It concerned a city commissioner in Montgomery, Alabama, who sued the nation’s paper of record for running an advertisement that criticized unnamed Southern officials for their treatment of civil rights protesters, getting a few details wrong. The Alabama courts backed this transparent attempt to use libel law as a political weapon.
But the Supreme Court unanimously overturned those rulings, creating a higher defamation standard for public officials. The media now had to demonstrate “actual malice,” either by publishing something they knew was untrue or with “reckless disregard” for its falsity. Subsequent rulings broadened this to include public figures and others who find their way into the limelight.
Despite this raised threshold, Sullivan is not a get-out-of-jail-free card for media lies. Murder the Truth is peppered with examples of successful defamation cases, including one in 2023 that forced Fox News to cough up a $787.5 million settlement to Dominion Voting Systems for knowingly lying about its voting machines. A situation like the one Trump described, involving a purposely false article, would be unquestionably actionable.
Mariner Books
The book describes how, for decades, the Sullivan decision enjoyed near-universal approval. In 2010, a bill fortifying its provisions unanimously passed both chambers of Congress. But now a cabal of libel lawyers and conservative ideologues is committed to its eradication, with one judge declaring it “a threat to American democracy.”
Justice Clarence Thomas, in a 2019 concurring opinion in a defamation case involving comedian Bill Cosby, called for revisiting the Sullivan decision if a more “appropriate case” came along. (Enrich suggests Thomas’s tepid support for this ruling, expressed early in his 1991 confirmation hearings, began to be undone by his “simmering anger” toward the press later in that same hearing, when Anita Hill detailed her allegations of sexual harassment.) In 2021, Justice Neil Gorsuch, prodded by an academic paper that contained major inaccuracies, also called for a fresh look at Sullivan.
As Murder the Truth relates, powerful people routinely use libel laws to torment and silence their critics. For instance, wrestler Hulk Hogan’s 2012 lawsuit against the website Gawker for publishing parts of a video of him having sex was bankrolled by Peter Thiel, a rightwing tech billionaire. Thiel (who would go on to underwrite the political career of J.D. Vance) was angered by the website’s unflattering coverage of him and wanted to put it out of business, which is what a jury’s $140 million judgment against Gawker accomplished.
Clearly, what’s needed is not the elimination of critical protections for the Fourth Estate but an expansion of them. One promising approach is state and potentially federal anti-SLAPP laws (the acronym stands for strategic lawsuits against public participation). These laws allow judges to toss meritless libel claims early in the process and in some cases award recovery of the defendants’s legal fees.
Another constraint may come from the fact that even powerful people and rightwing media outlets can get sued for libel. Trump was ordered, after two jury verdicts, in 2023 and 2024, to pay $88 million for sexually abusing and defaming writer E. Jean Carroll. Does someone who lies as routinely as Trump really want to make it easier for the people he lies about to sue him?