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Professor Roy Gutterman Interviewed for PolitiFact Article Fact-Checking Trump on Libel and Prison

Posted on Thursday 12/12/2019
Roy Gutterman

Fact-Checking Donald Trump on Libel Law and Prison

(Politifact | Dec. 5, 2019) At a NATO summit in London, President Donald Trump took aim at one of his adversaries back across the pond: House Intelligence Chairman Adam Schiff, D-Calif., a key figure in the inquiry into impeaching the president.

Trump has repeatedly referred back to the time when Schiff paraphrased Trump’s phone call with Ukrainian President Volodymyr Zelensky — an event at the heart of the impeachment inquiry. 

Trump has portrayed Schiff’s words as a fabrication that twisted what he said, but Schiff prefaced his remarks by saying they were not verbatim but were rather "the essence of what the president communicates" and "in sum and character, what the president was trying to communicate."

In a press conference at the NATO summit, Trump once again attacked Schiff over his remarks, suggesting that Schiff could be arrested for what he said ...

... The vast majority of libel or slander cases are civil rather than criminal, said Leonard Niehoff, a University of Michigan law professor. This means the speaker’s money could be at risk if they lose a libel or slander case, but they would not be imprisoned.

However, criminal libel laws of one kind or another do exist on the books in almost half the states. According to the American Civil Liberties Union and the Committee to Protect Journalists, two dozen states have criminal libel laws. 

The Supreme Court ruled in the 1964 case Garrison vs. Louisiana that the standard for criminal conviction is the same as in the landmark case from the same year, New York Times vs. Sullivan, that addresses civil libel cases. "The prosecution must prove falsity and actual malice, beyond a reasonable doubt," Wasserman said.

Some of today’s 24 state laws wouldn’t be relevant to the Schiff example. The laws in Illinois and Texas only cover slanders against financial institutions, while the one in Massachusetts concerns hate speech based on race or other classifications. Three others specifically exclude imprisonment as a possible sentence. (The states that do set maximum prison sentences top out at one year, possibly including fines.)

In addition, the Committee to Protect Journalists cites court cases in seven of these states that would seem to make these laws unconstitutional today, meaning that their existence on the books is archaic.

Even the states that have criminal libel laws rarely use them.

"As a general proposition, prosecutors have vastly better things to do with their time that pursue charges of criminal libel," Niehoff said.

In addition, such laws "would likely be deemed unconstitutional under the First Amendment if they were applied," said Roy S. Gutterman, director of the Tully Center for Free Speech at Syracuse University’s S.I. Newhouse School of Public Communications.

Importantly for Schiff’s case, there’s no criminal libel statute for the District of Columbia, or an equivalent federal statute. Nor is there one in Schiff’s home state of California. 

"So even if Schiff's summaries of the conversations were knowingly false and he were not immune, I am not sure what law he could be prosecuted under," Wasserman said.

Read the full article