In one year, what you’re about to read might be illegal.
That’s the message that comedian Louis C.K. had for his fans earlier this month when discussing presidential candidate Donald Trump’s (R) suggestion that we “open up libel laws” to prevent journalists, opinion writers and possibly comedians from critiquing leading political figures in a way that Trump finds distasteful.
{mosads}Trump’s threat against the press could be dismissed as merely the latest bluster in his boisterous presidential run if it were an isolated incident, but it follows a troubling pattern of behavior in the Trump campaign, which has a long and well-documented track record of antagonizing the press through ad-hominem attacks, threats of violence and trying to delegitimize it as a credible player in American public life. It doesn’t matter whether the journalist in question leans left or right or consistently reports with an even hand. Criticize Trump and there’s probably a meanspirited tweet heading your way.
Trump himself probably summarizes it best: “Some of the media is among the worst people I’ve ever met,” he said, “a pretty good percentage is really a terrible group of people.”
Journalists may not always be the nicest people in the world, and while the media get a lot of flak from the American public (often deservedly so), the irony seems lost on Trump that if there’s one profession the American public despises more than journalists, it’s lawyers. Legal action in lieu of a free exchange of facts and ideas simply isn’t the answer.
Trump’s assault on the press, though coming from a Republican platform, is not a product of some dark impulse of conservatism. It crosses a line beyond any coarse rhetoric or disagreeable policy he may propose. “He doesn’t simply violate conservative principles,” writes Paul Miller in The Federalist. “He violates American principles. Donald Trump is a danger to self-government, civil liberties, the culture of democracy, and the ideals of a free and open society.”
Plenty of attacks on the First Amendment have come from the left. As Matt Welch points out in Reason, we need look no further than the 2016 front-runner on the other side of the aisle for another poor track record on the First Amendment. Remember Hillary Clinton’s (D) press-corralling incident? How about some of the laws policies she has supported while serving as the first lady or as U.S. senator? Many of them, such as the 1996 Communications Decency Act, the 1998 Child Protection Act and the 2002 Bipartisan Campaign Reform Act, had all or part of their contents struck down by the Supreme Court on free-speech grounds.
Assaults on the First Amendment are also taking place at the local level. Wisconsin, for example, is just coming to the end of a years-long ordeal in which a partisan district attorney launched a rogue John Doe investigation into conservative supporters of Gov. Scott Walker (R). Conservatives targeted in the probe were slapped with gag orders — legally barring them from speaking out about what was happening — and subjected to unconstitutional surveillance and paramilitary-style police raids into their homes. Thankfully, some of the targets had the courage to speak to the press, risking prison to bring their story to light. With the First Amendment on their side, they were eventually vindicated by the state Supreme Court declaring the John Doe probe unconstitutional.
As a nonprofit news organization, we at Watchdog.org have experienced firsthand the toll that libel lawsuits can take on the press even when there is no wrongdoing. There’s no question that “open[ing] up libel laws” would have a devastating impact on the press’s ability to speak truth to government power. Thankfully, the Supreme Court set a strong precedent in New York Times v. Sullivan that protects the First Amendment by making it very difficult to win a libel suit. The court’s unanimous decision beautifully states that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Contrary to Trump’s rhetoric, the office of president of the United States has built-in limits to its powers and therefore has little direct control over libel laws. The most consequential thing a president could do on the issue is to appoint Supreme Court justices who are open to eroding free-speech rights. With the current vacancy in the Supreme Court, taking a step toward weaker free-speech laws is not outside the realm of possibility. Justice Elena Kagan, for example, has voiced concerns that Sullivan has been improperly extended into certain kinds of libel cases. Americans should keep this in mind as they head to the polls in 2016.
This isn’t intended as another Trump hit-piece; he is only one manifestation of many threats to the most basic freedoms we enjoy as Americans. It’s a pro-First Amendment piece. Americans have an obligation to oppose attempts to tear down free speech in all of its forms, whether it’s a rogue district attorney, a former first lady or a reality-TV star who somehow ended up as a presidential front-runner.
Neily is president of the Franklin Center for Government and Public Integrity, a nonprofit that publishes public-interest journalism at Watchdog.org.