Donald Trump, Clarence Thomas, and the First Amendment

Donald Trump, as is well known, has been itching to open up the libel laws for a long time. As reported in the Boston Globe, Trump famously said this while campaigning for President:

I’m going to open up our libel laws so when [the New York Times or Washington Post] write purposely negative and horrible and false articles, we can sue them and win lots of money.

Trump gets reanimated about this issue every time Alec Baldwin does an impression of him on SNL, and threatens to sue the network as well.

And this from a man who repeatedly pretended to be his own spokesperson so that he could brag about himself to the gossip columns in New York and has told so many lies as President the fact checkers literally cannot keep up.

Whatever.

Well, recently Justice Clarence Thomas weighed in on the issue as well.[1] He said in a recent case that it might be time to revisit New York Times v. Sullivan, 376 U.S. 254 (1964), the landmark case protecting the press from most libel cases.

New York Times v. Sullivan

The NYT came out of the civil rights era and an effort to defend Martin Luther King (you may have heard of him). In brief, a group called Heed their Rising Voices published an advertisement (not even an article) in the Times with the intention of raising funds for MLK’s legal defense (after he had been arrested in Alabama again). In describing the actions taken by authorities in Alabama the ad made several factual errors (such as claiming MLK had been arrested seven times when he had only been arrest four times). Although L. B. Sullivan, the Montgomery Public Safety Commissioner was not named in the advertisement, Sullivan argued that the inaccurate criticism was defamatory to him as well because it was his duty to supervise the police department.

When the libel case came up to the Supreme Court four years later, the court created the “actual malice” standard, which requires that a plaintiff alleging libel or defamation who is a public figure must be able to prove that the publisher knew that the statement was false or acted in “reckless disregard of its truth or falsity.”

What this does is to protect newspapers and other publishers from simple reporting errors (like how often somebody was arrested) unless they knew it was a lie (or didn’t do any due diligence). This is the standard that President Drumpf and Justice Sexual Harasser object to.

Politicians can legally lie on the Campaign Trail

It is somewhat ironic, therefore, that there have been cases decided recently which essentially sanction politicans’ lying on the campaign trail. For example, the Supreme Judicial Court in Massachusetts struck down a statute which prohibited a candidate from knowingly lying about the record of another candidate.[2]

But Massachusetts isn’t the only state. Ohio has a similar law that does not allow lying during elections, as well as 15 other states, and whether any of those statutes can be enforced is in question. The reason for that ambiguity has to do with a Supreme Court ruling called Susan B. Anthony List et al. V. Driehaus et al., 573 U.S. _ (2014).

The case is mostly procedural (which makes it complicated for the layperson); while not deciding the issue on the merits, the Supreme Court sent it back down, where a lower federal court decided that the Ohio statute violated the law.[3]

The bottom line is this: there is no statute that prohibits lying on the campaign trail that, when challenged, has been upheld as constitutional. Political candidates, PACs and their surrogates at this point pretty much have carte blanch to lie about their opponents.

Can sitting Presidents lie without consequences?

If candidates can lie about their opponents on the campaign trail, can sitting Presidents (or other elected office holders) just lie about anything without any consequences? That is to say, without any legal consequences (as opposed to political consequences)?

Well, first of all, lying isn’t illegal (Thank God!) or face it, we’d all be in jail. But we’re talking the President — which should theoretically raise the bar and now lower it — and also the many lies he’s told about his political opponents.

At the moment, none of that has any consequences for the Donald. But be careful what you wish for Liar-in-Chief, because if we hold the press to a higher standard, we may have to hold you and your fellow office holders to a higher standard as well.


[1] Technically this was dicta in a concurring opinion agreeing that the court had correctly turned down an appeal from Kathrine McKee (who has accused Bill Cosby of sexual assault) after she sued Cosby for libel based on what his lawyer had said about her.

[2] Although to be fair, that statue included criminal penalties, which is what the Justices of the SJC found particularly objectionable.

[3] Unlike a Supreme Court holding, that decision is not necessarily binding on other federal courts, but it is important.

About a1skeptic

A disturbed citizen and skeptic. I should stop reading the newspaper. Or watching TV. I should turn off NPR and disconnect from the Internet. We’d all be better off.
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