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Trump and ACLU Need Federalism Tutoring

Reacting to the Fire and Fury book, Trump demanded changes in American libel laws to let public figures sue publishers more easily. The ACLU rightly reminded Trump that: “Libel cases are based on state laws, which neither the president nor Congress has control over because of our nation’s federalist system.” Both the ACLU and Trump are right. The ACLU is right; there is no general federal libel statute. Each state has its own libel laws. Trump can’t change those laws. But Trump is right, too. The severe limits on the ability of public figures to win libel cases come not from state laws but from U.S. Supreme Court rulings, especially New York Times v. Sullivan (1964), that apply the Court’s view of the First Amendment to state libel laws. State legislatures cannot countermand these Court rulings, nor is Congress likely to try to do so by preempting state libel laws. Trump can only try to appoint justices who might overturn the Sullivan ruling. But Neil Gorsuch, Trump’s first appointee, affirmed Sullivan during his Senate confirmation and cited his own libel ruling in Bustos v. A & E Television Networks (10th Cir. 2011).