If the President Is Libeled, Can He Sue? Should He?

Recently, the National Enquirer headlined a story claiming that President Bush - who famously has said that he stopped drinking, cold turkey, as of his fortieth birthday - is drinking once again. It cited multiple confidential sources, and has stood by the story despite scrutiny by more mainstream media.

The story raises an interesting legal question: If the Enquirer is wrong, could - and should - President Bush sue the publication for libel?

In this column, I will argue that while such a suit technically could be brought, the President would be extremely unwise to file it. (Full disclosure: As an attorney, I previously represented the Enquirer. In order to respect attorney-client privilege, I will, of course, never draw on that experience here.)

The Elements of a Libel Claim Brought By a Public Figure

Libel is defined as a false statement of fact, made with the legally-required state of mind, which causes damage to reputation.

Because the President is a public figure, the legally required state of mind - as established by the famous 1964 case of New York Times Co. v. Sullivan - is "actual malice."

The Court's unfortunate choice of words, when it coined this phrase, can be misleading: The publication need not actually be "malicious," in the sense in which that word is commonly used; no nastiness or meanness need occur. (Also, the idea of "malice aforethought" in criminal law is very different from this kind of "malice.")

In the subsequent case of St. Amant v. Thompson - decided in 1968 -- the Supreme Court further explained that the requirement of "actual malice" means that there must be recklessness, but "reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing."

Rather, the Court clarified, for recklessness to be shown, "There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice." (Emphasis added.)

In short, "actual malice" is not a matter of what a defendant should have known if he had done better research, could have known if he had asked different questions, or would have known if he had pressed the source further.

Indeed, shoulda-woulda-coulda doesn't come into it; the only question, according to the Court, is: Did the defendant "in fact" seriously doubt the truth of what he published?

Put another way, it is a matter of whether this particular defendant knew, in his own mind and heart, that he was very likely publishing false material when he published it.

The Specifics of the Enquirer Report

Importantly, the Enquirer story did not simply report that the President had relapsed. It also gave some specifics.

Citing confidential "family sources," the Enquirer said that "the 59-year-old President was caught by First Lady Laura downing a shot of booze at their family ranch in Crawford, Texas, when he learned of the hurricane [Katrina] disaster."

The Enquirer also quoted a confidential source who, it reported, said that this was no isolated incident. Citing "a Washington source," the Enquirer said, "The sad fact is that [the President] has been sneaking drinks for weeks now."

That "Washington source" said, according to the Enquirer, that ""The war in Iraq, the loss of American lives, has deeply affected [the President]. He takes every soldier's life personally. It has left him emotionally drained."

Why the Specifics of the Report May - and In Some Respects, May Not -- Matter

Whether the Enquirer is precisely right on all of these specifics would not be directly at issue in a libel suit. That's because "substantial truth" is a sufficient defense against a libel claim.

If a story is substantially true, the damage it might wreak comes, in substance, from First-Amendment-protected truth, not libelous, illegal falsity - and thus the court gives the publication at issue a free pass.

How does a Court judge whether a story is "substantially true"? The assessment differs based on the facts of a given case. Roughly, the Court asks if the substance - the core, the heart - of the damaging part of the story is true.

So suppose the story is that a young, out-of-work starlet got drunk every night for a month. The story is still likely to be held to be substantially true if the publication gets wrong whether the month-long run of drinking happens two months ago, or three months ago.

Even though from a journalism standpoint, the mistake as to when the drinking occurred is pretty major, from a "substantial truth" standpoint it's not: The damaging suggestion that the starlet is an out-of-control drinker remains no matter which month the drinking happened.

(In contrast, if the starlet only had a few drinks one night at her birthday party, there's a bit of truth to the story, but plainly not enough to make it "substantially true." The damage comes from the report that she drank a lot; drinking a little, in this context, is not enough.)

But the specifics of the Enquirer's story still may matter, in another way:

They make clear that the article contained some statements of fact, not opinion. And statements of fact are what libel law requires for a claim to be pursued.

It may be a matter of opinion if someone has returned to alcoholism, or ever was an alcoholic in the first place (something that the President has denied, and that the Enquirer does not claim in its story). But statements about drinking on particular occasions are matters of fact.

The President either downed a "Texas-sized shot of straight whiskey," or he didn't.

He either has been "sneaking drinks for weeks," or he hasn't.

Does the Story Damage the President's Reputation?

Do these statements damage the President's reputation? A court would be inclined to think so, simply because of their nature.

Courts take libelous statements that could damage professional reputation very seriously. And, speaking generally, no one wants a President who responds to stress by drinking - as the Enquirer suggests Bush did.

Interestingly, though, there is a way in which these reports could actually give a boost to Bush's reputation, in the eyes of some people. That same "Washington source" is quoted as saying, "The war in Iraq, the loss of American lives, has deeply affected [the President]. He takes every soldier's life personally. It has left him emotionally drained."

For liberals who claim that Bush entangled the U.S. in the Iraq conflict too lightly, and is not considering the option of troop withdrawal seriously enough, this is some contrary evidence. It says, in effect, that the President has been hit hard, emotionally -- as I and many others think he ought to be -- by the loss of life in Iraq.

Also, for liberals who claim that Bush cares less about black people than white - as Kanye West said on television - the Enquirer's statement that Hurricane Katrina threw the President into emotional crisis is at least some contrary evidence. The story suggests that the President was upset by the Katrina disaster itself - not just by his own sinking approval ratings.

I think it's great that West spoke out. But in assessing the legal question of whether this article inflicted reputational damage, it's important to consider whether it actually could, instead, have counteracted the reputational damage inflicted by West's remark. (That remark itself was opinion, not fact, and thus could not be the basis of a libel claim.)

Typically, an image-enhancing statement does not negate the effect of a separate damaging statement, for libel purposes. But if the positive statement - whether it is of fact, or of opinion -- puts the damaging statement in context, it may actually change the meaning of the damaging statement. (Imagine an article that quotes a source saying that a man hit another man, but then speculates that he may have done so because the other man was about to kill a child in cold blood. The speculation casts the man in the role of hero, whereas the factual claim - about the blow struck - would otherwise have cast him as a villain)

Granted, the Enquirer report might be read to suggest that the President's low approval ratings are putting pressure on him. But it also might be read to imply that the President is appalled at the federal government's - including his own - failure to prevent so many predominantly African-African deaths.

All Evidence Known So Far Suggests There Was No "Actual Malice"

What about the crucial issue of state of mind? Were these statements made with "actual malice"?

There's no reason to think so - and quite a bit of reason, in the Enquirer report, to believe they were not.

The Enquirer cites a number of mutually corroborative sources who provided specific details. A reference to "family sources" suggests that the Enquirer has at least two sources who are close to the Bush family, if not family members.

Moreover, the sources reportedly offered the kind of specific information - even about a claimed verbal exchanges between the First Lady and the President - that they ought to have had access to, if they truly were family sources. And such overhearing is not out of the question: The reported clash between the couple happened at the Bush's Crawford Ranch, where an atmosphere more informal than that of the White House may possibly permit more eavesdropping by staff and others.

Finally, it is plausible that a former drinker would return to drinking in a time of stress, and few would dispute this is a time of intense stress for the President.

In short, whether or not this story is true, it has the ring of truth. And there is no evidence known to the public that the Enquirer knew anything that should have alerted it to a probability the story was false.

Based on what is now known, then, the "actual malice" case would seem very weak. (Of course, any subsequent developments regarding any editors' or reporters' knowledge of problems with sources' reliability and authenticity could change that.)

For this reason, and the reasons noted above, the President would be exceptionally ill-advised to file suit over this story, even if he knows - because he knows better than anyone else whether he's been drinking - it's false.

Another Downside of Suing: Reciprocal Discovery

Suing would also be unwise for another reason: Although many libel plaintiffs don't fully understand this, filing suit opens them up to the process of civil discovery.

That only makes sense: After all, the story they are challenging was about them, and the question that must be answered, in the case, is whether that story was true or, at least, substantially true. Discovery into their affairs is thus inevitable.

Submitting to the process of civil discovery means that the plaintiff himself, or herself, must sit for a deposition, and work with attorneys on answers to interrogatories, requests for admission, and document requests.

Here, everyone at the Crawford Ranch at the relevant period of time - from staffers, to aides, to the First Lady -- could theoretically be deposed as to the President's emotional state. Meanwhile, interrogatories could try to find out how much alcohol was at the ranch, where it was, and what kind it was.

Document requests could seek kitchen and bar receipts. Requests for admission could ask the President if he is now, or has ever been, an alcoholic - or sought treatment related to his drinking. And creative lawyers could come up with many more kinds of requests than these.

Then - even if no leaks occurred, which seems improbable -- if the case moved into motion practice, and the results of discovery were attached to motions as exhibits (as inevitably occurs), the results of discovery would be public.

No President wants to invite that kind of nightmare. Indeed, even private persons who bring libel suits, may sometimes come to regret it -- due to just this kind of invasive, but legitimate, discovery. Libel is a tort, but discovery in a libel case is a totally different creature than, say, discovery in a car accident case.

Although the President Can Face Personal-Capacity Tort Suits, He Shouldn't File Them

A final reason the President shouldn't - and won't - sue comes from the current state of the law with respect to suits that could be brought against him, in his personal (not official) capacity.

The famous Clinton v. Jones Supreme Court decision allowed Paula Jones's suit - which was also, in essence, a tort suit - to go forward. But when the Jones suit spawned the Lewinsky debacle, many commentators questioned the wisdom of the Supreme Court's decision.

That decision, of course, is still the law. Tort suits against Presidents acting in their personal capacity can still be filed. So if the President, on impulse, takes out the family car, and runs over your foot, you can go straight to court.

But at the same time, courts have strong tools at their disposal to make sure that such suits do not interfere with the President's functioning. After all, the President is not just a person, but the head and personification of an entire branch of government. He or she must grapple with domestic and international issues alike. And America's current power in the world means the U.S. President's decisions affect the world.

What can a court do to make sure a President can function in his or her job, even while responding to a civil suit? Scheduling can be arranged to suit the President's needs. And very long stays of an action can be granted, out of respect for the President's schedule.

Stays - which freeze proceedings in place for a time - are a major tool in a judge's arsenal of ways to accommodate a president.

For instance, suppose the Clinton v. Jones judge had granted a lengthy stay of the action (or even a series of stays, or a stay of discovery) that was not timed to the expiration of the President's term.

The ruling would not have brought into issue the question the Court subsequently addressed: Can a sitting President be sued in his personal capacity? And the result might have been that the Lewinsky situation would never have occurred -- or that if it had, it would have taken a very different form.

After Clinton v. Jones, stays can still be granted by judges in light of the President's pressing duties. With troops in Afghanistan and Iraq, and terrorism a major issue, the President's ability to focus is especially important.

But if the President were to divert his own attention, by suing the Enquirer or another publication, a court might be quite unsympathetic to his later arguments that a personal action against him ought to be stayed.

For all these reasons, the press has a field day with Presidents - and will continue to - when suits are filed against Presidents in their personal capacity. That's our system. And it's a lot better than having state-controlled media.

Certainly, the clash can get ugly - claiming that someone with a drinking problem who's been sober for almost twenty years, has now relapsed, is a harsh charge. But that's the price of having speech be free.