Mimesis Law
9 December 2019

Donald Trump, Free Speech and Libel: Criminalizing Butthurt

Mar. 2, 2016 (Mimesis Law) — Television personality turned Republican Presidential frontrunner Donald Trump has made antagonism towards the press part of his campaign. Disparaging the press is a common part of his stump speeches and debate appearances. Trump has now taken an additional step by stating he wants to open up libel laws:

I’m going to 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 going to open up those libel laws. So that when The New York Times writes a hit piece which is a total disgrace or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected. You see, with me they’re not protected, because I’m not like other people, but I’m not taking money — I’m not taking their money. So we’re going to open up those libel laws, folks, and we’re going to have people sue you like you never got sued before.

Trump, now the frontrunner with a big lead, may be biting the hand that fed him. As recently as December, he had received 25 times more media mentions than the entire GOP field combined. Without the free-to-him media exposure, Trump’s rise in popularity would have been far more difficult. Or at least far more expensive.

As a deft self-promoter and deal maker, it is doubtful that Trump is truly serious about his libel proposal. But even if his proposal is serious, it is quite unlikely to go anywhere. Foremost is the fact that the Supreme Court held that the First Amendment makes it more difficult to successfully bring a libel case when you are a public figure. If Trump is thinking long-term about Supreme Court turn over, then it’s possible he can remove this impediment through careful appointment as President. But in the short term, he would face a formidable legal obstacle to his professed goal.

Further, libel is a state matter. The only way President Trump could directly impact libel law is through encouraging Congress to pass and then for him to sign a bill making libel a federal matter. Whether there is wide-spread support for such a bill in Congress remains to be seen. The larger issue is what horror could result from selecting Supreme Court Justices less protective of free speech and tinkering with libel law at the federal law. After all, Frankenstein’s Monster was the result—but not the goal—of the Doctor’s tinkering.

The current social climate is one that is hostile to certain forms of speech. Recently Twitter has begun purging users who make other users feel unsafe—or whatever. No doubt our decedents will speak of the dark days of 140-character oppression. British celebrity Stephen Fry decided to take a leave of absence from Twitter due to the thought policing, saying the following:

To leave that metaphor, let us grieve at what twitter has become. A stalking ground for the sanctimoniously self-righteous who love to second-guess, to leap to conclusions and be offended – worse, to be offended on behalf of others they do not even know. It’s as nasty and unwholesome a characteristic as can be imagined. It doesn’t matter whether they think they’re defending women, men, transgender people, Muslims, humanists … the ghastliness is absolutely the same. It makes sensible people want to take an absolutely opposite point of view.

In this atmosphere it’s hard to imagine, in an ‘open debate’ about free speech and libel laws, that the result would be anything other than moving backwards. Justice Holmes, writing for the majority of the Court, established a cabined First Amendment by saying “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” If we’ve learned anything from Gamergate and the Sad Puppies Hugo awards incident, it is that dissent is ‘clear and present danger’ to Goldestein’s regime, thus righteously and vigorously suppressed.

Surprisingly, Justice Holmes changed his mind just a few months later and wrote the following in dissent:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises.

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.

Justice Holmes’ first view continued to dominate the First Amendment jurisprudence for decades, until the view Holmes took in dissent became the dominate, present day view. But for many decades prosecutors could successfully convict speakers with unpopular viewpoints.

Throughout the 19th century, sedition, criminal anarchy and criminal conspiracy laws were used to suppress the speech of abolitionists, religious minorities, suffragists, labor organizers, and pacifists. In Virginia prior to the Civil War, for example, anyone who “by speaking or writing maintains that owners have no right of property in slaves” was subject to a one-year prison sentence.

The early 20th century was not much better. In 1912, feminist Margaret Sanger was arrested for giving a lecture on birth control. Trade union meetings were banned and courts routinely granted injunctions prohibiting strikes and other labor protests. Violators were sentenced to prison. Peaceful protesters opposing U. S. entry into World War I were jailed for expressing their opinions. In the early 1920s, many states outlawed the display of red or black flags, symbols of communism and anarchism. In 1923, author Upton Sinclair was arrested for trying to read the text of the First Amendment at a union rally. Many people were arrested merely for membership in groups regarded as “radical” by the government.

Arguably, we’ve enjoyed a half century plus of the greatest period for freedom of speech that the county has yet experienced. And it has likely contributed to our dominance in both entertainment and technology industries. Yet, the current climate is one where there is a strong desire to punish hate speech, blasphemy, and microaggressions. Re-visiting precedents that would weaken free speech threaten a return to the days where speech in support labor organizing, suffrage, or the abolition of slavery was possibly criminal.

Contrary to what the defense bar may think, prosecutors are not often out there demanding that the legislature make more criminal statutes. Increasing the number of offenses without increasing budgets will inevitably lead to more charging discretion. In large measure, this is already the case at the federal level, particularly with immigration violations and offenses. There are simply too many cases and not enough resources to charge them all. Inevitably, re-criminalizing speech would lead to trade-offs on who and what gets prosecuted, possibly at the expense of “real crimes.”

And due to the spread of electronic media, one local community could have a disproportionate impact on public discourse through the use of criminal charges. Without the benefit of criminal charges, groups like Westboro Baptist Church managed to force their views in front of a large audience. Similar groups would be willing to use criminal speech laws to harass and silence its detractors. We’ve seen it already with groups co-opting private companies to bend communication to their agendas.

It’s one thing for a local community or an individual to seal itself off from the objectionable parts of the world, but returning to a less protective reading of the First Amendment would potentially allow a few to chill the speech of many nearly anywhere there is an electronic media device. The Twitter purges indicate how the few would readily use such power to silence the “speech criminals.”

If Twitter CEO Jack Dorsey wants to deactivate everyone with whom he disagrees, it’s mostly between him and his shareholders. On the other hand, prosecutors do not wish to be co-opted in such a war and then be compelled to silence political and social statements through criminal charges; it would be the force of the state compelling citizens into silence, rather than just deactivating an account. Arrest, trial, and imprisonment for speech is something entirely different than deactivation.

Donald Trump probably won’t get his way, but he is picking a fight in which we would all likely lose too.

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