In 1964, the Supreme Court decided a case called New York Times v. Sullivan. That historic decision “constitutionalized” the law of defamation (meaning both libel and slander) by adding First Amendment protections to what had always been considered a common law civil offense, inherited from English law, having nothing to do with freedom of speech.

The “Sullivan” case, as it has come to be known, marked a sea change in American law. It coined the confusing term “actual malice” as a requirement for public officials suing the press. In plain English, a government official suing for defamation must prove that whoever made or published the statement actually knew it was false or acted with “reckless disregard” for whether it was true or false. The underlying principle, to quote the opinion, is that “debate on public issues should be uninhibited, robust, and wide-open.”

“Defamation” is a “reputational tort,” meaning that it refers to a statement of fact that is likely to damage a person’s reputation. Under the old rule, any defamatory statement was deemed to be false, and there was no margin for error, fault or no fault. Unless the speaker could convince the jury that the statement was true, the speaker was absolutely liable and the only question was how much money he had to cough up.

Until Donald Trump, no sitting President of the United States had ever sued the press for libel. Now he has done it three times, first against the New York Times on February 26, then in short order against the Washington Post and CNN.

I suppose we shouldn’t be surprised. During the 2016 campaign Trump didn’t just run against Hillary Clinton, he also ran against the press, vowing to “open up our libel laws” to make it easier to sue publishers and broadcasters and “make lots of money.” He never explained how he would do that, since the “actual malice” rule comes from the Supreme Court, not the Oval Office.

Since becoming president, Trump has declared open warfare on the news media, repeatedly using such epithets as “dishonest,” “scum,” and “fake,” and calling it the “enemy of the people,” words used by dictators such as Joseph Stalin to describe anyone who didn’t agree with them. He has found it “frankly disgusting the way the press is able to write whatever they want to write.”

He has now taken that warfare to a new level. After suing the Times, Trump said, “They did a bad thing. And there will be more coming.” What did they say that got Trump’s nose so far out of joint?

The Times op-ed article included the statement that the Trump campaign’s “overarching deal” with Putin was “the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy.” The Post published two columns, one citing the Mueller Report to the effect that the Trump campaign “encouraged, tried to conspire with, and happily profited off” Russia’s interference in 2016; the other asking rhetorically, “Who knows what sort of aid Russia and North Korea will give to the Trump campaign, now that he has invited them to offer their assistance?” CNN said that the Trump Campaign “assessed the potential risks and benefits of again seeking Russia’s help in 2020.”

Do these lawsuits, filed in the middle of an election campaign, have any legal merit? The answer is no.

First, these articles are largely expressions of opinion. In this country, we still have the right to say what we think. Second, even if these pieces are to some extent factual, those facts are accessible to the public. It’s just like not taking Bill Barr’s word for what’s in the Mueller Report. We can read it for ourselves and make up our own minds. Third, the press defendants don’t have to prove truth; modern defamation law requires Trump to prove that the statements are false, which is somewhere between unlikely and impossible. Finally, these statements are simply the slings and arrows that politicians have always faced. I’m not even sure they are defamatory. Whatever they are, they are not the stuff of lawsuits.

Two further thoughts occur to me. One is that individuals and companies have the right to sue for defamation, but does a political campaign such as “Donald J. Trump for President, Inc.”? I’m not so sure. The other (here I’m letting my personal opinion show) is that maybe Donald Trump is “libel proof?” That may seem far-fetched, but some courts have applied those words to individuals whose reputations are already so damaged that nothing anyone says about them can make things worse.

We don’t need to worry about the Times, the Post, or CNN. They are in good company on Trump’s enemies list, joining judges, environmentalists, Muslims, and many others including LeBron James. And they have the resources, including insurance and excellent lawyers, to defend these cases. But we should worry about whether such presidential bullying will chill media outlets, as well as bloggers and podcasters, which may lack the resources available to these media giants.

Probably Trump wouldn’t sue them, but they might think twice before taking the Court up on its invitation to be “robust” and “uninhibited.