America’s most famous litigant—Donald J. Trump—is back in the news, and not only because he is running for a second term as president. Right before Thanksgiving, CNN submitted its response to a defamation lawsuit Trump lodged several weeks ago. Trump claimed that the network had defamed him by, among other things, describing him as a “racist,” “Russian lackey,” and “insurrectionist.” Seeking a quick victory, CNN moved for an immediate dismissal of the complaint. Now the judge in the case will have to decide whether Trump’s case has sufficient merit to proceed.

As even casual observers of US law and politics know, Trump is unlikely to prevail in the end, even if he can show that CNN spread defamatory falsehoods about him. After all, modern American libel law has been designed on purpose by the Supreme Court to make it exceptionally hard for public figures to sue and recover damages. Accordingly, Trump’s suit will seem to many a quixotic enterprise.

Nevertheless, the case raises a more fundamental question, one that concerns all Americans and that therefore shouldn’t be left entirely to the courts: Should it be so hard for public figures to sue successfully for libel? To borrow a favorite expression of the former president, why should the process of libel litigation be “rigged” in favor of the defendant and against the plaintiff?

America’s contemporary libel standards arise from New York Times v. Sullivan—a case decided by the high court in 1964—and subsequent decisions that further elaborated its revolutionary doctrine. According to that doctrine, libel suits brought by public figures must be judged under standards different from those applied to ordinary litigants. Public figures must show not only that their reputations have been damaged by the publication of defamatory falsehoods. They must also show that the defamer acted with “actual malice”—a technical term meaning that the defamer published either knowing that the claims were false, or at least with “reckless disregard” for whether they were true or false. Not surprisingly, this standard has proved almost impossible to meet in practice, with the result that the media can traffic in defamatory falsehoods with near-impunity.

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