Memo to Donald Trump: If you find it tough debating opponents named Cruz, Rubio, Kasich and Carson, just wait until you come up against Madison, Jefferson and their crew.
Voters in great numbers certainly approve of your promise to “make America great again.” Well, James Madison, Thomas Jefferson and the other Founders did all that the first time around at the risk of their lives, not primary votes, and in the process, made the United States the beacon of liberty for the entire world that it remains today.
The Founders also enacted a Bill of Rights, with a First Amendment that protects a free press to help keep it that way by serving as a watchdog on government — and on those who would serve in it.
“One of the things I’m gonna do, and this is only gonna make it tougher for me,” Trump said to a group of Nevada supporters last week. “If I win, I’m gonna open up our libel laws, so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re gonna open up those libel laws.”
First, there’s nothing in those 45 words of the First Amendment that require anyone to be positive or nice or polite, or set any such limits on free speech. Yes, anyone can sue right now if defamed, but a public figure has to prove “actual malice,” which means the writer or speaker knew the “facts” were false or went ahead with “reckless disregard” for the truth.
As to correcting falsehoods, well, libel statutes are state, not federal laws, so the president has no actual power to change them. There’s jawboning as president to make a counterpoint and then — wait for it — using the resulting press coverage and social media to gather public support behind those speeches.
Defamation laws protect all citizens, not just journalists. So making it easier to sue a reporter also will make it easier for someone to sue anyone, including politicians. Do any of us really want to make it easier for someone in this already over-litigious age to sue us over a disagreeable public exchange, a sharp and cutting posted comment, or the wording of a negative restaurant review?
What Trump may have in mind was weakening the so-called “anti-SLAPP law.” A “Strategic Lawsuit Against Public Participation” is the term for someone primarily using the expense of a court case as a weapon to punish the target. Trump recently lost a challenge on a counter-lawsuit brought against a student suing him in connection with Trump University.
Our nation’s Founders came out of political systems in which even the truth would not protect you from the wrath of the elite scorned. In fact, since denying or trying to discount truthful statements likely is harder than simply disproving a lie, honest and truthful statements were dealt with more harshly than falsehoods.
In the specific case in Trump’s sights, the Supreme Court declared in 1964 in New York Times v. Sullivan that public figures could not successfully bring a lawsuit for defamation, even if the statement or information about them contained errors, as long as the “speaker” did not deliberately create falsehoods or convey wrong information in reckless disregard for the truth.
Why did the Court do that? Because the justices realized that holding every statement to an impossible standard effectively would paralyze debate, discussion and opposition. Imagine the disarray if politicians were hauled into court every time someone challenged their views, comments or campaign literature. Yes, taking your case to the court of public opinion is potentially less lucrative than easing the legal path in a court of law, but that’s why we have elections, not beauty contests.
In 1964, the Court said its ruling reflected “a profound national commitment to the principle 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.”
If elected, Trump could have a chance to appoint justices presumably more inclined to overturn Times v. Sullivan. But as presidents have found numerous times, there are no guarantees once a court nominee is confirmed for a life term.
The Founders knew personally what “vehement, caustic” and “unpleasantly sharp attacks” were like. Insults ranging from scatological to biological to plain vulgarities were the stock stuff of political essays and political campaigning — and yes, many gave as often as they took. And by protecting the muck and drivel, they counted on the rest of us to that rough-and-tumble, give-and-take as the necessary means of finding the solutions for self-governance.
In an era in which politicians and other public figures as never before can carefully draft and deliver a sanitized, blow-dried, calculated image directly to voters via social media, it’s not a surprise that some see an independent, uncontrolled news media as a threat — whether it is “fair-and-balanced” or downright partisan.
The place to refute critics is not in a courtroom, and the law should not be twisted into a for-profit venture.
Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center.