Trump, Defamation, and Incitement

• In Event: Donald J. Trump and the Law

Abstract

The law of defamation is ancient and has an important nexus with executive power. Peter Zenger notoriously suffered under a charge of seditious libel, and many governments and cultures have punished speech that undermines executive authority. In the United States, we have made the office of president a divinity but the person who occupies it a mortal, and we have a conflict between the freedom to speak and the necessity of executive efficacy. So, questions spring up as to where the line falls with respect to libel concerning protection of the office and sacrifice of the office holder. All presidents have been untoward to some, overweening to others, and calumniatory to enemies. But in the law of defamation, there is little to indicate where the line is with respect to monetary liability for victims of defamation by a president in office. A sitting president is immune from suit in defamation, but what about after leaving office? In this paper, I examine the extent and limits of liability of former presidents for defamatory statements made in office. If that liability is or proves to be extensive, it may well shape and change actions of sitting presidents.

Author

• William G. Weaver, University of Texas at El Paso