McKechnie on Defaming the President @AF_Academy

Douglas B. McKechnie, US Air Force Academy, is publishing Defaming the President in volume 49 of the Mitchell Hamline Law Review (2023). Here is the abstract.

Former President Trump has a history of relying on defamation lawsuits as a means to confront public criticism. At the same time, he has lamented the significant burden the Supreme Court imposed on public figures’ defamation claims in New York Times v. Sullivan. Standing alone, his criticism poses little threat to the Court’s actual malice standard and its protection of an “uninhibited, robust, and wide-open” debate about public officials. However, Justices Thomas and Gorsuch have joined the former President’s demands to overturn Sullivan. If their demands are heeded, public officials’ defamation claims will no longer be encumbered by the actual malice standard’s First Amendment principles. Yet Presidents are a unique sort of public official whose constitutional status carries its own distinctive First Amendment concerns. This article posits that because of their unmatched position within the constitutional scheme, the First Amendment prohibits Presidents’ defamation claims. I begin the article detailing the actual malice standard, former President Trump’s history of defamation claims, and the political and judicial calls for the actual malice standard to be overturned. The article then moves to an exploration of the First Amendment’s impact on a President’s defamation claims. I argue that the same First Amendment principles that prohibit the government from pursuing seditious libel claims also apply to a President’s defamation claims. I posit that when considering Presidents’ unitary control over executing the business of the state, coupled with their absolute immunity from civil litigation, their defamation claims impose incomparable burdens on the essential debates regarding self-governance. For these reasons, Presidents’ defamation claims are barred by the First Amendment.

Download the article from SSRN at the link.