Saturday, February 27, 2016

Trump Says He Will Gut First Amendment Protections to Make it Easier to Sue Political Critics

While campaigning in Texas yesterday, Donald Trump said, if elected, he would gut the First Amendment protection for political speech in order to more easily sue critics:
"One of the things I'm going to do if I win... 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
Donald Trump
lots of money," Trump said during a rally in Fort Worth, Texas.  
"We're going to open up those libel laws so 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," he said. "We're going to open up libel laws and we're going to have people sue you like you've never got sued before."
That comment, in which Trump indicates a willingness to gut this country's guarantee of freedom of speech and press, harkens back to the Presidency of John Adams.  Adams, a Federalist, was the beneficiary when the Federalist-controlled Congress in 1798 passed the Sedition Act.  That Act criminalized untruthful comments about the President (but not the Vice President Thomas Jefferson, who was not a Federalist) and other federal officials, including members of Congress.
Federalist prosecutors immediately went about going after Adams' and anti-Federal critics, filing charge after charge based often based solely on opinions about the President and Federalists that were deemed untruthful.  These defendants include William Durrell, publisher and editor of the upstate New York weekly, Mount Pleasant Register, Benjamin Franklin Bache. editor of the Philadelphia-based General Advertiser known as the "Aurora," Thomas and Abijah Adams, editor of the Boston Independent Chronicle, William Duane, Bache's successor at the Aurora, Anthony Haswell editor of the Vermont Gazette, and Thomas Cooper, a newspaper editor of the Northumberland, Pa., Gazette   Also, Judah P. Spooner, a printer from Vermont was charged with sedition for simply publishing a letter written in 1798 by Vermont Rep. Matthew Lyon that was harshly critical of President Adams and his administration.  Lyon was also prosecuted successfully for that letter, but won re-election from a jail cell.

Probably the most famous sedition prosecution was of James Callendar, who wrote the election pamphlet, The Prospect Before Us, in which Callender described the administration of John Adams as “one continued tempest of malignant passions. As President he has never opened his lips, or lifted his pen without threatening and scolding; the grand object of his administration has been to exasperate the rage of contending parties, to calumniate and destroy every man who differs from his opinions.”  Calendar accused Adams of contriving “a French war, an American navy, a large standing army, an additional load of taxes, and all the other symptoms and consequences of debt and despotism.” He concluded by offering a choice: “between Adams, war and beggary, and Jefferson, peace and competency."

Federalist Judge Samuel Chase obtained a copy of the book and asked that Callendar be prosecuted.  Chase also acted as judge,, finding him guilty and sentencing Callendar to nine months in jail.  Chase had also presided over the conviction of Thomas Cooper.  It should be noted in most sedition trials, the only jury question was whether the comment was made; it was up to the judge whether the statement was considered to be false.

Lest anyone think only prominent people were prosecuted under the Sedition Act that person should know the story of poor Luther Baldwin who stumbled out Newark, N.J. bar and, upon learning that a guns were firing in salute to President Adams who visiting the city , remarked to his drinking companion that the guns should instead be aimed at the President's ass.  Both Baldwin, and his friend, who made a similar comment, were prosecuted for sedition.

While Trump's suggestion isn't for a change to criminal law, only civil, the distinction is without a difference.   Presently when lawsuits are filed by public figures complaining about critical comments, the result is usually a swift dismissal as there has to be some indication that the comments were made with "actual malice," a difficult standard to meet.  Trump apparently wants the "actual malice" requirement removed, a development which would subject news organizations, bloggers and even ordinary individuals to the prospect of continually being hauled into court if they dare to criticize those in power, people like Donald Trump.  Most people simply don't have the financial resources to defend themselves against protracted libel litigation.  The result is a profound chilling effect on free speech.

That Trump would advocate such an assault on our First Amendment protections should set off warning bells. Trump is already constantly threatening to sue anyone who dares cross him or even thinks of publishing a negative story about him.  While those threats are almost always laughable given First Amendment protection provided to political speech, if Trump actually effected a change in libel law his lawsuit threats would not longer be the joke they currently are.

Trump though seems oblivious to the fact that there is no federal libel law.  Each state has libel laws, but those laws are constrained by the protection of the First Amendment, including the New York Times v. Sullivan requirement of "actual malice" in order for a public person to sue for untruthful criticism.  Trump would have to make his change through court decisions, in particular a revisiting of the New York Times v. Sullivan holding.  That is unlikely to happen anytime soon.

Note: To see more detail on the sedition prosecutions, some of which was included in this article, check out the helpful listing providing by the First Amendment Center.


Anonymous said...

Pete Boggs said...

This isn't all bad or a First Amendment attack. And, for a guy like Trump, with his net worth; it cuts both ways...

There's a difference between error of opinion & deliberate or malicious misinformation. Too many in the LSM knowingly put out a defective product; for which they ought be subject to product liability standards. There is no right to misinform or deceive.

LamLawIndy said...

What a tool! Trump can't take the heat when the press turns on him -- but he has no problem with the earned media he gets from it -- so he wants to use govt to chill free speech. Again, he's nothing but a bully. Classic .

Paul K. Ogden said...


Yeah, I have doubts about Trump's claims that he is incredibly wealthy. I think you'll find he's deeply in debt.

Nonetheless, his comments are a direct assault on the First Amendment. Deliberate and malicious information is already covered under the libel actual malice standard. Trump wants to lower that standard so he can start suing his critics and they have to spend exorbitant legal fees to defend themselves in court. That is a very chilling prospect to people who believe in Free Speech.

Trump is a two bit bully and he is frustrated that he can't use the courts to bully his critics into being quiet.

Paul K. Ogden said...


On Anon 3:35's link above, I googled it without hitting on the link to find the story. I was concerned that the link might be to a virus. In the future, if you want your comment published and you're using a link, please write something besides simply pasting the link. That looks too much like a virus when someone does that.