Whoa! Did you just get a nasty flashback to fourth or fifth grade with mention of the Alien and Sedition Acts?
Good. That wasn’t The Curmudgeon’s intention but it’s a pretty nifty fringe benefit for him.
The Alien and Sedition Acts, for those of you who either weren’t paying attention in fourth or fifth grade or for some reason don’t remember something you learned in school 10, 20, 30, 40, or 50 years or more ago, were (with help from Wikipedia),
… four bills passed by the Federalist dominated 5th United States Congress, and signed into law by Federalist President John Adams in 1798. They made it harder for an immigrant to become a citizen … allowed the president to imprison and deport noncitizens who were deemed dangerous… or who were from a hostile nation … and criminalized making false statements that were critical of the federal government (Sedition Act). The Federalists argued that they strengthened national security during an undeclared naval war with France. Critics argued that they were primarily an attempt to suppress voters who disagreed with the Federalist party, and violated the right of freedom of speech in the First Amendment.
The web site ushistory.org elaborates:
Clearly, the Federalists saw foreigners as a deep threat to American security. As one Federalist in Congress declared, there was no need to “invite hordes of Wild Irishmen, nor the turbulent and disorderly of all the world, to come here with a basic view to distract our tranquillity.” Not coincidentally, non-English ethnic groups had been among the core supporters of the Democratic-Republicans in 1796.
The most controversial of the new laws permitting strong government control over individual actions was the Sedition Act. In essence, this Act prohibited public opposition to the government. Fines and imprisonment could be used against those who “write, print, utter, or publish . . . any false, scandalous and malicious writing” against the government.
Under the terms of this law over 20 Republican newspaper editors were arrested and some were imprisoned. The most dramatic victim of the law was Representative Matthew Lyon of Vermont. His letter that criticized President Adams’ “unbounded thirst for ridiculous pomp, foolish adulation, and self avarice” caused him to be imprisoned. While Federalists sent Lyon to prison for his opinions, his constituents reelected him to Congress even from his jail cell.
Does this sound familiar? The irrational concern about foreigners? The desire to suppress dissent in the press?
To hear Republicans and conservatives talk about it, the constitutional right that’s most in jeopardy in this (and any other) presidential election is their second amendment right to bear arms and shoot anyone who looks sideways at us with impunity. Let us set aside, at least for now, our recognition that the constitution in no way guarantees that this right must be without any restrictions or limits and let us also set aside our understanding that the man in the White House for the past seven years couldn’t be a better friend of the NRA and the gun lobby if he was on their payroll.
No, among our bill of rights, the one that’s in the greatest jeopardy at this particular point in the presidential campaign, surprisingly and even astonishingly so, is the first amendment.
You know: the one that guarantees us freedom of speech and freedom of the press, among other things.
As the constitution puts it,
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
In recent weeks, Donald Trump has suggested that we need to “open up” the libel laws because he’s sick and tired of the press writing nasty things about him. (And to win lots of money pursuing such suits, he adds. It always comes down to the Benjamins with Trump, doesn’t it?)
Trump’s a guy who loves loves loves to dish it out but can’t stand to take it even a little.
The man’s ignorance about the constitution is frightening. For starters, the San Francisco Chronicle points out that technically, there are no federal libel laws. When you hear about a libel case, it’s a civil lawsuit based on what the constitution says and how the courts have interpreted the constitution. (Note: The Curmudgeon isn’t a lawyer and he approaches interpreting legal issues somewhat hesitantly, interpolating and interpreting what he’s reading. He’s reasonably sure he’s being accurate here but can’t vouch for some of the legal terminology he’s mostly trying to avoid using.) As The Curmudgeon understands it, most anti-defamation laws are state laws over which presidents have no jurisdiction.
But the kinds of things Trump is talking about when he speaks of “opening up” the libel laws would bump up against the U.S. Supreme Court’s 1964 Times vs. Sullivan ruling, which established that a libel claim by a public figure must be shown to be false, defamatory, and published with “actual malice,” which is defined as reckless disregard for facts. One of the key statements in that decision is:
(W)e consider this case against the background of 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.
The publication National Review offers an interesting explanation of whether something’s false or defamatory.
Because a claim must be false to be libelous, truth is an absolute defense against libel. So, for instance, if I write that Donald Trump is a blazing jackass who has driven his companies into bankruptcy four times, mainly because he doesn’t know how to handle debt, Trump can’t do anything about that, because it is true. If I write that Trump is poorly positioned to take on Wall Street because he owes practically every bank on the street enormous sums of money, I’m golden, because it is true. If I write that Donald J. Trump is a lowlife who has cheated on his wives and betrayed his own family and the families of others through his remarkable personal commitment to adultery, Trump has no recourse. because it is true. If I write that the fact that Melania Trump was a client of Trump’s dopey little modeling agency strikes me as creepy indeed — I advocate the separation of sex and payroll — I’m on solid ground, because the facts of the case are not in dispute. If I write that you credulous yokels who believe that Trump is self-funding his presidential campaign have fallen for an obvious lie, I am protected by the fact that this is documented truth.
The second issue — whether a claim is defamatory — can get complicated. “Defamation” means damaging someone’s reputation, and if you are a serial adulterer, serial bankrupt, serial liar, an incompetent, and a tangerine-colored buffoon with the worst comb-over in the history of comb-overs, it is difficult to damage your reputation. The courts have held that some people are “libel proof,” meaning that their reputations already are so low that you cannot actually damage them. The textbook case of this is the serial killer Randy Kraft, whose libel case against a true-crime writer was thrown out on the grounds that serial killers have no good name to damage…
In interpreting these concepts, the courts also point out that public figures have excellent tools for defending themselves. As CNN explains:
The court recognized that public figures have access to the media to defend themselves, and it went on to reject any notion that the speaker must prove truth; instead the plaintiff must prove falsity. This is all because the First Amendment needs “breathing space” in order for free speech to survive. And if we impose liability for merely erroneous reports on political conduct, it would reflect the “obsolete doctrine that the governed must not criticize their governors.”
Which means that Trump’s complaint – about what he calls “purposely negative and horrible stories” – is groundless unless those stories are false, defamatory, and published with actual malice. The thing is, as long as what someone writes is factually accurate – that is, not false – then defamation and malice don’t really matter because ultimately, what’s been offered is a statement of fact and fact always trumps, pardon the pun, suggestion or innuendo or anything else, especially when public officials are involved.
In making his argument for weakening those non-existent libel laws, Trump points to Great Britain, where the burden for proving libel is much lighter. The thing is, again according to the Chronicle,
It must be noted that one of the reasons for the First Amendment’s assertion of a free press was the founding fathers’ objection to British common law that insulated members of the social hierarchy and government from public criticism they deemed offensive or harmful — regardless of veracity.
And by his own standard, Trump is probably more guilty of irresponsible speech than anyone else. Consider, after all, some of the things he’s said about and some of the things he’s called some of his opponents for the Republican nomination. In what way can they be interpreted as anything other than “purposely negative and horrible stories” without being based on even a hint of fact or truth?
Once again, Donald Trump is proving himself to be a dangerous man – perhaps the most dangerous man in America today (and in a country with Ted Cruz, that’s saying a lot), maybe the most dangerous ever, and certainly the most dangerous since Joseph McCarthy. He knows how to make money but he doesn’t understand how the economy works; he understands foreign policy goals but doesn’t understand how the world works; and he clearly doesn’t understand something as basic as our constitution.
How can he take an oath to uphold a constitution he neither understands nor respects?
What really strikes The Curmudgeon is this: the more Trump talks, and especially when he talks about things like changing laws to protect himself from criticism, the clearer it becomes that the guy who says he wants to make America great again doesn’t really understand what made America great in the first place.
And someone like that has no business being president.