Monday, April 20, 2020

Republican Attacks on Free Speech Are Unacceptable and Unpatriotic

The Republican Party, before Donald Trump, used to cherish free speech.  Even when liberal-leaning journalists were using the First Amendment to misrepresent right-wing views, conservatives never stopped supporting the principles of the First Amendment, which has been interpreted to provide maximum protection to political speech.   That has all changed in the Trump era, which has featured the President and his Republican allies filing baseless defamation, i.e. SLAPP lawsuits, designed to shut up their critics.

SLAPP stands for "strategic lawsuit against public participation."  If is a type of defamation suit filed
by someone with deep pockets against a critic who often lacks financial resources.  A SLAPP lawsuit takes advantage of the American Rule which says win or lose, you are responsible for paying your own legal expenses.

Plaintiffs do not file SLAPP lawsuits believing they can win on the merits.  Rather, the goal is to drive up the critic's legal expenses so much that the critic agrees to stop saying bad things about the plaintiff in exchange for the plaitniff dismissing the lawsuit.  The plaintiff succeeds not only in getting the critic end the criticism, it is intended to stop others from criticizing the plaintiff yet they too might face a lawsuit.

Many state legislatures, including several dominated by Republicans, have found the use of the technicalities of who pay legal expenses to attack free speech to be so outrageous that they have passed anti-SLAPP statutes.  These laws reverse the American Rule so that in these sorts of defamation cases the winner has to pay the losers' legal fees.  In the states which have strong anti-SLAPP statutes, the use of fake defamation lawsuits to shut up critics has virtually disappeared.

Earlier this month, the Trump campaign filed a SLAPP lawsuit against a small television station in northern Wisconsin which dared to run an ad which criticized Trump's handling of the Covid-19 crisis.

The Associated Press describes the lawsuit:
President Donald Trump’s reelection campaign is suing a Wisconsin TV station for running an anti-Trump commercial that pieces together audio clips of the president talking about the coronavirus outbreak in a way they argue is misleading and false.  
The ad by the Democratic super PAC Priorities USA features a series of soundbites in which Trump downplayed the threat posed by the virus, while a chart that is splashed across the screen gradually begins to shoot upward as cases of the virus skyrocketed across the U.S.  
The lawsuit alleges the ad splices together the clips in a way that makes it appear as though the president said the virus was a “hoax.” Trump’s campaign argues that the president did not call the virus itself a “hoax,” but was instead referring to Democrats who have politicized his handling of it.
The comments in question were made by Trump at a February 28, 2000 South Carolina rally.  While the "hoax" comment was in the context of Trump criticizing the Democrats' response to the then still developing crisis, Trump went on during the rally to downplay the seriousness of the spread of the virus, which just a few weeks later would be reclassified as a "pandemic."

 The "hoax" distinction the lawsuit attempts to make falls far, far short of what is needed to win a defamation lawsuit that targets political advertising, the most protected type of speech under our First Amendment.   Of course, the Trump campaign has no expectation of winning the lawsuit on the merits.  It was no accident that the lawsuit was filed in Wisconsin, which is one of the few states which has no anti-SLAPP law, in a county which Trump won by more than 60%.  The presiding judge in the court was appointed by former Republican Scott Walker.

This is not the first SLAPP lawsuit the Trump campaign has filed.  The Trump campaign this year filed defamation lawsuits against the New York Times, the Washington Post, and CNN, not for inaccurate news stories, but for editorials the Trump Campaign claimed included false statements about Russian interference into the 2016 election. 

The Trump Washington Post lawsuit was filed in the D.C. federal district court and the CNN lawsuit in a Georgia federal district court.  Not coincidentally, there is no federal anti-SLAAP statute.  Meanwhile, the New York Times lawsuit was filed in New York state court.  New York has a very weak SLAPP statutute, a law graded as a "D" by the Public Participation Project which supports the enactment of anti-SLAPP laws.

Trump is not the only Republican filing lawsuits attacking free speech.  California Congressman Devin Nunes has filed several SLAPP lawsuits against critics, journalists, political operatives, and even a satirical internet cow.  (It is unclear where he is getting the money to finance all these SLAPP lawsuits).  But instead of filing them in California, which has an "A" rated anti-SLAPP law, Nunes opted to file them in Virginia which has a substantially weaker SLAPP law.

Even the Hoosier state is not immune to defamation lawsuits being threatened by politicians to try to stop negative press coverage.  My colleague at Indy Republican reminded me that Indiana Governor Eric Holcomb had his attorneys issue two cease and desist letters to media outlets for publishing a story about the state allegedly agreeing to waive safety fines for a worker killed at an Indiana facility as part of a package to lure a second Amazon headquarters to Indiana.  The C&D letters prompted a response from the Indiana Society of Professional Journalists, which was re-published yesterday by Indy Republican:
Dec. 3, 2019 
Honorable Eric J. Holcomb Governor of Indiana 200 W. Washington St. Indianapolis, IN 46204 
Dear Gov. Holcomb: 
The Indiana Professional Chapter of the Society of Professional Journalists takes exception to your call for the Indianapolis Star and Reveal from the Center for Investigative Reporting to cease and desist reporting stories about your administration’s handling of worker safety investigations at Amazon facilities in Indiana. 
Our organization, which represents professional journalists throughout Indiana, feels this move is a threat to press freedom. According to Article I, section 9 of the Indiana Constitution: “No law shall be passed restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.”
In our view, your cease-and-desist letters, issued on Nov. 29, are designed to intimidate reporters and journalists looking into your administration. The letters also add to the overall climate in the nation that looks to undermine the credibility of journalists and media outlets. 
Although you might not agree with the contents or conclusions of the report in Reveal and the Indianapolis Star, an unusual call by your office for a cease-and-desist order against the media could chill efforts to report an ongoing story. 
Indiana Pro SPJ stands behind the efforts of local and national journalism outlets to report issues of public importance and hold leaders accountable. If there are disputes over accuracy, there are ways to address those concerns without issuing a cease-and-desist order. 
Indiana should set an example for the rest of the nation to follow when it comes to press freedom. Our officers would welcome the opportunity to meet with you and discuss this issue further. 
The Board of Directors Indiana Professional Chapter Society of Professional Journalists
Amen.  Not surprisingly, no lawsuit was ever filed, no doubt because Indiana has a "B" rated anti-SLAPP statute.  Nonetheless, Governor Holcomb was way over the line for threatening, using taxpayer paid attorneys no less, lawsuits which he and his advisers knew had no chance of prevailing on the merits.  Clearly the the C&D letters were aimed at chilling media criticism of the Holcomb administration.

We Republicans need to be better than this.  The media is not the "enemy of the people."  The "enemy of the people" are those who file, or threaten to file, SLAPP lawsuits to chill freedom of speech.  Trump, Nunes, and Holcomb deserve the wrath of the voters for their unpatriotic attacks on the First Amendment.

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