Trump Threatens To Sue NYT With Made-Up Civil Standard

(REUTERS/Brendan McDermid)

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Kevin Daley Supreme Court correspondent
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Republican presidential nominee Donald Trump blasted The New York Times on Twitter Saturday, announcing his lawyers had urged him to sue the Grey Lady for “irresponsible intent.”

The tweets came after the paper reported Trump had built much of his real estate empire with the help of nearly $1 billion in tax breaks.

There is no such tort as “irresponsible intent.”

Legal scholars and commentators from all quarters of the ideological spectrum mocked Trump’s posturing.

To succeed in a cause of action against a press outlet, Trump would have to bring a libel claim against the Times. This would require Trump lawyers to demonstrate that the paper had acted with “actual malice.”

To prove actual malice, Trump would have to show that the Times published false statements about him with the knowledge that said statements were false or had exercised reckless disregard for the truth. (RELATED: Weekend Circuit: Fight Against Syrian Refugees Falters)

Some legal scholars have been critical of the actual malice standard. Professor Richard Epstein of New York University School of Law, one of the most cited legal scholars of the last decade, has argued that the New York Times v. Sullivan decision, which established the standard, was imprudently crafted by the dramatic facts unique to the case.

He also points out that the decision lacks a deterrent factor, as the frequency of libel claims and the size of libel awards has increased in the post-Sullivan era. Others argue the standard forces the courts to concentrate on whether a media outlet was negligent, when the true purpose of a libel claim should be to assess the truthfulness of a statement harmful to one’s reputation. Furthermore, judicial scrutiny of media processes and practices may create new threats to First Amendment interests.

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