London Libel Lawsuits Punish Truth Tellers: THE U.S. SHOULDN'T IMPORT BRITISH DEFAMATION LAW, NO MATTER HOW MUCH DONALD TRUMP WOULD LIKE TO..

• Author: Sullum, Jacob

AS A PRESIDENTIAL candidate in 2016, Donald Trump famously promised to "open up those libel laws" so that aggrieved public figures like him could sue irksome critics and "win money instead of having no chance." After Trump took office, he downgraded his vow to a suggestion, possibly because someone informed him that presidents have no power to change the state laws and judicial precedents that govern defamation claims. It might be time, he tweeted, to "change libel laws" in light of his perception that journalists had "gotten me wrong."

We can get some idea of what Trump had in mind from his long and astonishingly petty history of suing or threatening to sue writers who portray him in an unflattering light. In 2006, for instance, he demanded $5 billion from Timothy L. O'Brien, a financial journalist who had dared to suggest, in his 2005 book TrumpNation: The Art of Being the Donald, that the thin-skinned developer was not worth as much as he claimed. In 2018, Trump's attorney sent a cease-and-desist letter to Michael Wolff, threatening legal action if the author insisted on publishing Fire and Fury, an expose about Trump's inner circle.

While these were hollow threats, Trump was right in thinking he might have faced better odds under a different legal regime. "In England, you have a good chance of winning," he told Miami's CBS affiliate inOctober 2016. "Deals are made, and apologies are made. Over here, they don't have to apologize. They can say anything they want about you or me, and there doesn't have to be any apology."

It is not true that Americans "can say anything" with legal impunity. But it is true that the U.K. strikes a different balance between reputational interests and freedom of expression. While Trump thinks that balance is preferable, civil libertarians have long been troubled by the chilling effect that British defamation law has on truthful speech. Notably, Trump's praise of that system was prompted by the question of whether the First Amendment provides "too much protection."

In the U.K., defamation plaintiffs have two major advantages that Trump envies. First, they do not have to prove that an allegedly defamatory statement was false. Second, they do not have to show that the defendant deliberately or recklessly misrepresented the facts--the "actual malice" standard that the U.S. Supreme Court has said the First Amendment requires in libel actions brought by public figures.

Instead, the target of a British defamation lawsuit has the burden of establishing that he is protected by one of several recognized defenses. If he settles on a "defense of...