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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. President Trump called

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Speaker 1: our country's libel laws a sham and a disgrace and

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Speaker 1: pledged a review of them yesterday. Trump's comments came after

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Speaker 1: the publication of the book Fire and Fury that depicts

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Speaker 1: him as erratic and inept. Trump has filed several defamation

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Speaker 1: lawsuits over the years, all without success, and he has

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Speaker 1: advocated changes to libel laws before. During the presidential campaign,

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Speaker 1: Trump promised this in an appearance in Fort Worth, Texas

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Speaker 1: and February. I'm going to open up our libel laws

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Speaker 1: so when they write purposely negative and horrible and false articles,

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Speaker 1: we can sue them and win lots of money. We're

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Speaker 1: gonna open up those libel laws. But is there anything

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Speaker 1: Trump or his lawyers can do to change the libel laws?

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Speaker 1: Joining me to answer that as an expert in the area.

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Speaker 1: And Enrique Armio, a professor at Elon University Law School.

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Speaker 1: And Rique Let's begin with a little primer on libel.

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Speaker 1: What is it? Libel is a statement, either written or spoken,

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Speaker 1: that is both false and harms the reputation of the

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Speaker 1: person that that statement is about. And and this is

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Speaker 1: a longstanding part of the law of towarts, part of

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Speaker 1: state law. And if that reputation, if the harm to

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Speaker 1: that reputation is great enough that that makes the person

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Speaker 1: who that statement knows about eligible to collect damages from

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Speaker 1: the person who said or wrote the libelist statement. So

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Speaker 1: this is state law versus federal law. That's absolutely right.

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Speaker 1: Each state has its own interpretation of what constitutes UH

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Speaker 1: libel as statement, what level of fault A person bringing

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Speaker 1: a libel claim has to show that the statement was

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Speaker 1: made with uh kind of overarching all of this, though,

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Speaker 1: is a constitutional rule that comes from a case from

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Speaker 1: nineteen sixty four the Supreme Court decided called New York

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Speaker 1: Times versus Sullivan, And what that case says is that

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Speaker 1: if a statement is about a public official, then state

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Speaker 1: law can can only say that that the person who

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Speaker 1: made that statement can be liable if the statement is

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Speaker 1: made with actual malice, which means the person made the

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Speaker 1: statement knowing it was false or not caring whether or

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Speaker 1: not the statement is false. So then is there anything

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Speaker 1: that a president can do to change libel laws even

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Speaker 1: if a review is done. Well, the folks who are

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Speaker 1: saying that the president has zero power to change libel

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Speaker 1: law because libel law is state law, and every law

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Speaker 1: every state has different libel laws, are being quite accurate here.

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Speaker 1: What's the what's the president does have the power to

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Speaker 1: do is appoint Supreme Court justices. And if President Trump

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Speaker 1: chose to appoint Supreme Court justices that sought the rule

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Speaker 1: in New York Times versus Sullivan is wrong again. The

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Speaker 1: requirement that says the US the First Amendment to the U.

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Speaker 1: S Constitution says that actual analysis required for a liabel

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Speaker 1: lawsuit brought by a public official. If that case was overturned,

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Speaker 1: which the Supreme Court only has the power to do,

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Speaker 1: then states would be free to do what they wanted

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Speaker 1: and say that that public officials could sue h news

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Speaker 1: publications for liabel based on negligence alone. In other words,

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Speaker 1: that the news organization acted unreasonably didn't check the sources

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Speaker 1: that a careful news organization might have. So it's not

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Speaker 1: quite accurate state the president can do nothing. Justice scale

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Speaker 1: actually came out and said a few years ago that

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Speaker 1: he thought that this rule that basically constitutionalizes state live

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Speaker 1: law was wrong. He thought that states should be able

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Speaker 1: to do whatever they want with respect to public officials

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Speaker 1: and setting the standard of proof, setting the degree of fault,

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Speaker 1: and if the if President Trump had the opportunity to

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Speaker 1: appoint enough justices who felt the same way, then he

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Speaker 1: could have a real effect on state libel law. That

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Speaker 1: would be an uphill battle, wouldn't and it would take

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Speaker 1: quite some time, if ever it certainly, it certainly would be.

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Speaker 1: You know, the the nineteen sixty four rule of New

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Speaker 1: York Times versus Sellivan is absolutely entrenched. It was the

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Speaker 1: unanimous opinion at that time. The Court has said again

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Speaker 1: and again that the First Amendment requires some space. It

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Speaker 1: requires us to be able to talk about our public officials,

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Speaker 1: and it has to protect us if we say things

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Speaker 1: about public officials that turn out to be factually false.

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Speaker 1: Um that public officials should basically accept the risk of

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Speaker 1: being talked about in ways that might harm their reputations.

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Speaker 1: So this is really as entrenched as a constitutional rule

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Speaker 1: as we have. But having said that constitutional rules last

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Speaker 1: only as a long as five justices on the court

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Speaker 1: decide that they should be the law. Enrique, want to

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Speaker 1: look closer at what Trump said. He said, you can't

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Speaker 1: say things that are false, knowingly false, and he also

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Speaker 1: said in his in his during the campaign, when they

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Speaker 1: write purposely negative and horrible and false articles, if the

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Speaker 1: media publishes something that is false on purpose, can they

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Speaker 1: be found liabel. That's exactly right, and that's one of

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Speaker 1: the most interesting things about this debate. President Trump, uh

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Speaker 1: intentionally or not, is actually stating the correct law with

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Speaker 1: respect to liable If a public official were being able

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Speaker 1: to say, as in the clip of the president you

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Speaker 1: just played, that that a book, a statement in a

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Speaker 1: book was knowingly false, that the person who wrote that

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Speaker 1: book said something about a public official that was knowingly false,

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Speaker 1: then that public official would be able to show actual malice.

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Speaker 1: But the problem, as the president sees it, from the

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Speaker 1: actual malice standard, is how difficult it is to show

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Speaker 1: that someone who published a statement that was defamatory and

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Speaker 1: it was false had that state of mind. In other words,

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Speaker 1: knew that it was false and made the statement anyway.

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Speaker 1: But as you, as your question implies, the President is

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Speaker 1: stating the law completely correctly. The problem is showing uh

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Speaker 1: that level of fault with respect to the person who

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Speaker 1: made the Liabeli statement. Trump issuing buzz Feed and Fusion

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Speaker 1: GPS for defamation over allegations about him in that well

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Speaker 1: known but unproven dossier. What chance does that lawsuit have?

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Speaker 1: Uh none? Um Uh. There There is probably no federal

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Speaker 1: court in the United States who would say that a

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Speaker 1: that a statement that was made um pursue into an investigation,

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Speaker 1: uh such as this one would constitute actual malice, or

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Speaker 1: that republishing the statement would come to dashual malice. So

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Speaker 1: the reason that that President Trump are people associated with

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Speaker 1: him consue BuzzFeed for a statement in the dossier, or

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Speaker 1: the reason that they can sue Michael Wolfe for a

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Speaker 1: statement that that Steve Bannon made to Michael Wolfe is

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Speaker 1: because of the republication rule in libel law, which basically says,

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Speaker 1: I can be just as liable for repeating someone else's

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Speaker 1: liabel statement as the person who who made the statement

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Speaker 1: to begin with. But the courts are very firm, as

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Speaker 1: I said, on the idea that we need to be

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Speaker 1: able to talk about our public officials. Uh. This is

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Speaker 1: what the First Amendment is for. It's intended to protect

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Speaker 1: that kind of debate. Even if some of those statements

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Speaker 1: turn out to be false, in most cases, they're not

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Speaker 1: made with knowing falsity. And that's the difference, and that,

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Speaker 1: I think is what fascinating area of the law. Thanks

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Speaker 1: for being here, Enrique. That's Enrique Armijo, professor at Elon

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Speaker 1: University Law School. The Supreme Court heard arguments yes today

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Speaker 1: in an Ohio case that could shape who gets to

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Speaker 1: cast ballots in November election. Thousands of Ohio residents got

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Speaker 1: a surprise when they went to vote in they couldn't

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Speaker 1: because they were no longer registered. Election officials in Ohio

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Speaker 1: send notices to voters who haven't voted in two years,

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Speaker 1: and if the voters don't respond and don't vote in

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Speaker 1: the next four years, they removed them from the rolls.

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Speaker 1: Joining me is Jonathan Brader, counsel at the Brennan Center's

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Speaker 1: Democracy Program. Jonathan, you were at the arguments, were they lively?

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Speaker 1: There was a lot of engagement from the justices. Ohio

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Speaker 1: basically is trying to convince the Court that a law

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Speaker 1: of it says that they cannot purge voters for failure

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Speaker 1: vote means that they can purge voters for failure to

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Speaker 1: vote UM that in my estimation, they were not very

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Speaker 1: successful in carrying that burden UM. And there's certainly a

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Speaker 1: lot of interest UM in what the best interpretation of

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Speaker 1: the statue is in light of its purpose and protecting

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Speaker 1: voters against unlawful purchase. What was the central question the

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Speaker 1: justices were interested in or was there a central question?

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Speaker 1: I think there were a couple UM central sources of inquiry.

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Speaker 1: One was UM, you know, how the Ohio could argue

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Speaker 1: essentially that its process was not actually removing voters because

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Speaker 1: they failed to vote. Ohio is essentially claiming that because

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Speaker 1: they send a notice UM intermittent to the non voting

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Speaker 1: UM and the person does not respond to that, that

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Speaker 1: they can somehow infer from math that the person has

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Speaker 1: moved UM. As several of the justices, including Justice so

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Speaker 1: that Mayor pointed out, however, it's not a reasonable basis

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Speaker 1: to think somebody has moved UM just because they have

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Speaker 1: not voted in one election. There was also a lot

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Speaker 1: of questions about the lift maintenance process in general. Several

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Speaker 1: of the justices did seem to indicate that they were

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Speaker 1: in favor or they were to uphold the Ohio system

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Speaker 1: including Justice Stephen Bryer. Some of his quest gens were

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Speaker 1: about what happens to to uh to dead people on

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Speaker 1: the rolls, And he also said, what are they supposed

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Speaker 1: to do? Is Rhode Island supposed to look at the

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Speaker 1: Tasmanian voting records or hospital records? So did he seem

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Speaker 1: to you to be leaning in the direction of supporting Ohio.

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Speaker 1: I think Justice Bryer was understandably interested in ensuring that

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Speaker 1: states have procedures in place whereby they can remove ineligible

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Speaker 1: people from the roles. That's something that everybody wants. Nobody

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Speaker 1: wants there to be get what on the voter rolls. Um.

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Speaker 1: There are a lot of procedures in place, UM, which

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Speaker 1: did come out during the argument for states to do that.

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Speaker 1: You know, if a piece of mail bounces back indicating

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Speaker 1: that someone has moved, UM. If death records from either

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Speaker 1: the states or national databases UM come back indicating someone

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Speaker 1: has died, motor vehicle records, so there really is a

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Speaker 1: wide range of information available that allows you to draw

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Speaker 1: a reasonable inference that someone actually is no longer eligible.

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Speaker 1: Not voting in one election, however, doesn't fit that category.

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Speaker 1: It doesn't really tell you anything when many many Americans

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Speaker 1: will skip voting in one election. Chief Justice John Roberts

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Speaker 1: seemed to disagree with that. He said, this notice doesn't

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Speaker 1: tell them nothing. It tells them that they did not

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Speaker 1: respond to a notice that says you're going to lose

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Speaker 1: the registration if you don't vote through the two years

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Speaker 1: the two elections. So he certainly seemed to be His

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Speaker 1: question seemed to indicate that he was on the side

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Speaker 1: of Ohio. Well, I think it's important to recognize that

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Speaker 1: there's a big difference between not getting a response to

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Speaker 1: a mailer and getting a bounce back. So there's two

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Speaker 1: different types of mailers that states send out to state

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Speaker 1: to voters, and I think they're not eligible. One is

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Speaker 1: affordable notice UM, which can directly be sent to another

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Speaker 1: address if the person doesn't live where you originally sent it.

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Speaker 1: That can be used as confirmation. Another one is nonfordable

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Speaker 1: non affordable, which means if a voter has moved it,

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Speaker 1: he'll bounce back. So when states do get those bounce backs,

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Speaker 1: that tells them something um that somebody has moved or

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Speaker 1: probably he has moved if they just don't get a response.

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Speaker 1: Though you can't really infer anything from that because most

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Speaker 1: people just take these mailers and throw them in the trash.

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Speaker 1: So that's that's the argument on the challenger's side. What

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Speaker 1: was the best argument on ohio side. I think Ohio

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Speaker 1: was essentially trying to convince the court um that you know,

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Speaker 1: they need to have some method of ensuring that, um,

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Speaker 1: they can identify people who have moved, and they want

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Speaker 1: to make sure they're keeping their little rolls up to date.

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Speaker 1: That's an understandable UM impulse. And you know, they were

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Speaker 1: trying to givivince the court that they want to keep

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Speaker 1: up to date rules. UM. The specific procedure which they're

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Speaker 1: trying to use, however, is hard to defend when it

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Speaker 1: contradicts the clear language of the federal law. It does seem, though,

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Speaker 1: did it seem to you as if several of the

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Speaker 1: justices were supportive of Ohio's need to purge their election roles.

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Speaker 1: I think there are certainly are understandable concerns about, you know,

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Speaker 1: maintaining accurate voter roles or questions from some of the justices,

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Speaker 1: including Justice Alito UM, that indicated that they were sensitive

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Speaker 1: to that policy priority. UM. But you know, again, Ohio,

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Speaker 1: in my estimation, did not carry their burden of convincing

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Speaker 1: the court that this process was permitted by law, or

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Speaker 1: even that it was a reasonable way of maintaining the

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Speaker 1: voter roles. How many states use voter inactivity to purge

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Speaker 1: their databases, so Ohio is an extreme outlier in this regard.

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Speaker 1: It is the only state that uses failure to vote

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Speaker 1: in a single election to trigger voter or removal proceedings.

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Speaker 1: There are a handful of states five other states that

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Speaker 1: will use inactivity over a longer period of time as

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Speaker 1: part of the process to remove voters, but Ohio is

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Speaker 1: the only one that does it this way. Thank you

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Speaker 1: for being here on Bloomberg Politics, Policy, Power and Law.

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Speaker 1: That's Jonathan Braider. He is counsel at the Brennan Center's

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Speaker 1: Democracy Program. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg