On July 21, 2022, former President Donald Trump’s counsel sent a 282-page cease and desist letter to the media outlet CNN. The letter alleged that CNN defamed the former President numerous times over the course of six years. To that end, the letter recounted a variety of examples of alleged defamation that primarily revolved around CNN referring to the former President as a liar. The letter demanded CNN preserve any documents relevant to the defamation allegations, issue an apology and correction, and retract the allegedly defamatory statements. The letter further asserted that if CNN did not comply with former President Trump’s demands, a defamation lawsuit would be forthcoming. While cease and desist letters are routine aspects of litigation, they are perhaps less routinely sent from a President, or former President, of the United States. For former President Trump, however, litigating defamation claims is not an uncommon occurrence.
In fact, Mr. Trump has a history of pursuing defamation claims against his critics and recognizing the costs it imposes on them. He has sued private individuals and media outlets for defamation when they criticized his business practices, and his election campaign pursued a variety of defamation claims during his 2020 reelection bid. All the while, the former President has recognized the difficult legal burden he faces in successfully litigating defamation claims as a public figure and has advocated for a change to defamation laws. The defamation laws he advocates to change, however, are grounded in the Supreme Court’s First Amendment jurisprudence. While Mr. Trump’s calls to change the law may appear to be quixotic or frustrated musings, those calls have been echoed in the Court itself. Though originally a lone voice, Justice Thomas was joined by Justice Gorsuch in arguing that the Court should revisit, if not overrule, the New York Times v. Sullivan decision, which applied the First Amendment to public officials’ defamation claims. With attacks coming from a President and Justices of the Supreme Court, a day may come when the First Amendment no longer provides the same robust protection for critics of public officials. Presidents, however, are a unique sort of public official.
As the head of government and state, the President, as a single individual, possesses an unparalleled authority to stand in the stead of the government, speak for the government, and embody the government. Indeed, the Framers adopted the unitary executive not only to ensure the President’s ability to act with decisive command of the government’s bureaucracies, but also to ensure that people can debate and identify where the fault lies when they are displeased with the government’s efficacy. For this reason, the First Amendment has a unique impact on a President’s defamation claims—it prohibits them.
Unlike English common law, where the King is sovereign, in the United States the people are sovereign, and the government is their agent. The Framers intended for the First Amendment to supplant the English common law that allowed the government to silence its critics through defamation prosecutions. To facilitate and guarantee self-governance, the First Amendment ensures that the people have an uninhibited ability to discuss and debate the government’s successes and failures without the fear of facing a defamation claim by the government itself. For that same reason, the First Amendment prohibits defamation claims by Presidents because of their constitutional position and incomparable control over the state and its actions. By prohibiting a President’s defamation claim, the First Amendment ensures that the people can engage in an unrestrained debate and enact political changes to the government through the democratic process.