No, President Trump Isn't Ditching The First Amendment, But He Is Undermining Free Speech

Free Speech

from the eyes-on-the-ball,-people dept

Did you hear the story this weekend about how Trump’s Chief of Staff Reince Priebus went on TV and said that the administration is “looking at” changing libel laws or amending the 1st Amendment of the Constitution? You probably did. It’s dumb and wrong and it makes no sense, but that doesn’t mean that the President isn’t already doing great harm to free speech. But first, let’s cover Priebus’s nonsensical comments. If you somehow missed it, here’s what he said:

And here’s a basic transcript. After ABC’s Jonathan Karl read a month-old tweet from President Trump whining about the NY Times and suggesting “change libel laws,” he continues:

Karl: That would require, as I understand it, a Constitutional amendment. Is he really going to pursue that? Is that something he wants to pursue?
Priebus: I think it’s something that we’ve looked at. How that gets executed or whether that goes anywhere is a different story. But when you have articles out there that have no basis in fact and we’re sitting here on 24/7 cable companies writing stories about constant contacts with Russia and all these matters…
Karl: So you think the President should be able to sue the NY Times for these stories that he doesn’t like?
Priebus: Here’s what I think. I think that newspapers and news agencies need to be more responsible with how they report the news. I am so tired…
Karl: I don’t think anyone with that. It’s about whether or not the President should have the right to sue them…
Priebus: And I already answered the question. I said this is something that’s being looked at. But as far as how it gets executed, where we go with it, that’s another issue.

Okay, so, first of all, as has been explained many times in the past, the President cannot change libel laws. That’s not how it works. First, defamation law is at the state, rather than federal, level. The federal government has no say in how they work. More importantly, the Constitution has put some very, very clear boundaries on defamation law, primarily in NY Times v. Sullivan, and this is pretty much considered totally settled law. There are no big debates about overturning that decision. There is no deep bench of judges who resent or try to reshape it. It’s not happening. So, yes, as Karl alluded to in the beginning, it would take a Constitutional Amendment that opens up and changes the First Amendment, and that’s not happening. So by “we looked at it” immediately followed with the caveat that he has no idea how it would happen or even if it would happen, Priebus is more or less admitting that people know that this is an impossibility, but they “looked at it” because the President said something and they have to.

I think David Frum’s take on this story is exactly right. Everyone minus the President (and maybe some of his supporters) know that you can’t just change libel laws as President. But, because he’s the President, his staff need to pretend to take the issue seriously, and the media then needs to report on it as if it’s a serious debate even though it’s not.

So by itself, this is something of a non-story. However, that does not mean that free speech is not under attack by this administration. As we noted a year ago when Trump first threatened to “open up” libel laws, even if he can’t change them, he can create serious problems for free speech and a free press — and he’s already doing that.

Backchannel has a story about how internet censorship is “advancing” around the globe, mainly focusing on attacks on social media. It mostly covers what’s happening in other countries, though as we’ve written, many are using things like the President declaring news he doesn’t like as “fake news” as an excuse to censor news they don’t like. The Backchannel story also mentions the attempt by government officials to uncover a “rogue” Twitter account as an example of an attack on free speech — as well as the attempt to roll back net neutrality. Not everyone thinks of rolling back net neutrality as a free speech issue, but it absolutely is. If ISPs can effectively slow down or block certain content, suddenly that’s a tool to silence speech that powerful people don’t like.

A separate issue is anti-SLAPP laws. These laws, which protect people who criticize others from burdensome lawsuits that were filed for the purpose of silencing that speech, currently exist in a little over half the states (with varying quality). But there’s been an effort under way to create a much needed federal anti-SLAPP law, which would actually be a useful deterrent to defamation lawsuits that have no legitimacy, and are only filed to silence or intimidate critics. But, given Trump’s ongoing claims that he desires to make defamation laws stronger, rather than protect those on the receiving end of such lawsuits, it seems unfortunately unlikely that any federal anti-SLAPP law will get signed.

But, really, the biggest threat to free speech may be the alleged intent to charge Julian Assange under the Espionage Act for publishing leaks. That would be a massive problem for the press, because any argument that allows the federal government to go after Wikileaks/Assange would also, absolutely, allow it to go after the NY Times, Washington Post and many, many more. Steve Vladeck, at Just Security had a very clear explanation of why. The really short version is that the US government has never really tried to use the Espionage Act to go after publishers, because it might open a can of worms, but Vladeck believes they could and he’s not convinced the Supreme Court would pay much attention to the First Amendment concerns. There’s much more to the explanation at that link, but it concludes:

Finally, and turning to the First Amendment question, the Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act. To be sure, the Court has held that, in some circumstances, the First Amendment protects public disclosure of confidential information (and has applied what’s known as “Pickering balancing” to assess when the public interest in disclosure outweighs the government’s interest in preserving confidentiality), but even the Bartnicki decision–in which the Court ruled that the First Amendment protects a radio station’s broadcasting of an unlawfully recorded audio conversation–turned to a large degree on the parties’ stipulation that the radio station itself had acquired the recording “lawfully.” Because of the Espionage Act, there’s no way for a third party “lawfully” to acquire classified national security information that they are unauthorized to possess. So I’m skeptical that Assange (or the New York Times, for that matter) would have a clear-cut First Amendment defense to the publication of classified information in anything but the most extreme case of public concern (and perhaps even then).

That’s not to say that there aren’t incredibly serious First Amendment concerns lurking in the background here; among other things, I have to think that the First Amendment might at least protect a right to publish information on unlawful government programs (which, by law, could not properly be kept secret in the first place), especially where the existence of the program is a matter of significant public concern. I’m just not that sanguine about the prospect of the Supreme Court recognizing a First Amendment right to publish national security secrets in anything but such a compelling case (and wonder, for example, if Snowden’s disclosures, at least of the phone records program, would fit the bill). Simply put, the principal historical constraint on prosecutions of the press for publishing national security secrets has been prosecutorial discretion, not constitutional law. And so one does not need to have a particular view about Assange (or think that he is or is not a journalist) to have a view on the implications here; the key is if he’s prosecuted as a third party under the Espionage Act, which, of itself, would set a dangerous precedent for press freedom.

So, free speech absolutely is under attack, and people need to keep their eyes on the ball here. There’s not going to be an opening up of libel laws by the President or a change in the First Amendment. But there are lots and lots of ways to attack and chip away at huge parts of free speech, and there are indications that this administration absolutely is moving in that direction.

Filed Under: anti-slapp, chilling effects, donald trump, espionage act, first amendment, free speech, journalism, media, reince priebus