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

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

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

Subscribe: RSS Leave a comment
Anonymous Coward says:


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

Looks like it is clearly a paradox to me. One cannot undermine the 1st without ditching it. Due to its very nature you must first ditch it to change any part of it. And yes, we have already ditched the 1st along with the rest of the constitution.

We are simply negotiating how far we plan to take things.

Anonymous Coward says:

Re: huh?

You could easily undermine the 1st without ditching it. For example you could have an amendment that outlawed using the word “food” in public. You could still get your point across, you would just have to use other words. The 1st would be undermined, but still mostly intact.

BTW, if you want to help stop Trump, look at If just 1% of the people that voted for Hillary contribute about $50/month, then that would give every democrat running in the 2018 general election about a million dollars. Since in many of these elections, less than a hundred thousand is normally spent by an individual candidate, it could make a big difference.

Anonymous Coward says:

Re: Re: huh?

You failed to comprehend.

Changing libel laws in any way that contradicts the 1st is unconstitutional on its face!

Changing the 1st by adding an Amendment means destroying it and making something new! At least this part is Constitutional, but entirely contradictory to the 1st and for the very obvious reasons!

and from the article…
“primarily in NY Times v. Sullivan, and this is pretty much considered totally settled law.”

Well… it looks like it is NOT so settled after all because…


Nothing is ever settled where humans are involved because eventually a jackass comes along and fucks it up… good or bad, right or wrong!

Anonymous Coward says:

Re: Re: huh?

This is perfect example of why I am right on target.

Due to the nature of how the Constitution works, nothing in it can be undermined without ditching it. If you cannot understand why that is then let me present to YOU why YOU are part of the problem.

If it is okay to undermined any portion of the document then it becomes a worthless piece of paper in its entirety. It’s like saying I can still fuck other people but still respect my spouse. It’s just not possible, and those of you with the ability to reason this are just exactly why people like Trump are in power.

Because if you do it, they can too and you have ZERO ethical currency with which to challenge them on it! In short order, you are a hypocrite, cognitively dissonant, just plain fucking RETARDED and OBTUSELY IGNORANT!

You either follow the fucking words to the DAMN TEE or GTFO!

Looks like its going to be a long slide down to hell in this basket!

Anonymous Coward says:

Re: Re: Re:2 huh?

Would you join it if I were?

Political parties are the problem. The political party I propose is the “I don’t sycophant for any party” party. If my guy shows sings of corruption, we shit the bastard out of congress. In other words, the “I am American First” not R, D, L, I, C, N, or whatever else there are.

That alone would solve the largest issue. After which we could spend our time bickering about how to fix social problems. right now the only solution for most is the one that the other party hates.

Leigh Beadon (profile) says:

Re: Re: Re: huh?

There’s a single, simple problem with your whole argument on this post: you are relying on the incorrect idea that there is a clear, bright line between things that contradict the first amendment and things that don’t.

But in fact there are 200 years of jurisprudence on the subject of free speech, all of it critical to determining what the first amendment actually means, and what it actually means to contradict it.

Anonymous Coward says:

Re: Re:

Agree, Trump is the very natural consequence of what would come after an Obama and exactly the warning George Washington warned us of if we cling to political parties!

I look to the next person after Trump being even worse. Party affiliation does not matter at this point. Both are so toxic to America that we are NOTHING of what we once were.

Anonymous Coward says:

Re: Re: Re:

You can always hope for an anti-Trump to be less partisan, but in politics as in real life, it takes two to fight unless you are Tyler Durden. The main mess is clearly in how fundamentally different the states are. As much as you may not like the party system, Trumps win in the primary was a protest if you ask most people, but his win in the election was a testament to how completely unreasonably partisan people are and/or how fed up they are with whatever (Trump has basically been the anti-anything through his campaign. Often diametrically opposing himself.).

When that is said, Trump is a late joiner of a larger eruption of nationalistic and anti-muslim thinking in the west. Most of his sister-parties in europe hates EU, wants more decentralisation in their countries, dislikes modern trans-border agreements and wants a strong leader to cut through the political crap they hear… You see where I am going? The current political system is losing many states and municipalities. Trump is seen as a hero by some people after his first 100 days. Not least his angry white poor men in certain states!

That One Guy (profile) says:

Illusionary protection

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.

As a reminder, the government did, and as far as I know has always held that everything the NSA did was ‘lawful'(and at worst slightly questionable), they merely made some minor changes to ‘address public concerns.’ The CIA’s torture and murder of prisoners was, if not outright declared lawful made so in every way that matters by a refusal to prosecute anyone involved for any crime(with the notable exception of the person who exposed the program).

Given the above, the idea that the law would protect disclosure of ‘unlawful’ programs is a phantom protection, as it wouldn’t cover squat. As far as the government is concerned everything it does is lawful, so no disclosure would be acceptable if they’re allowed to go after those making said disclosures.

Your best case scenario in that case is that after the government has made your life all sorts of unpleasant a future court is willing to overrule them and at least put some sort of stop to the continued punishment you’re facing by declaring the program unlawful, and therefore the publication of information on it ‘acceptable’. Cold comfort at best, and no protection that actually matters to say the least.

Anonymous Coward says:

Re: Illusionary protection

“Cold comfort at best, and no protection that actually matters to say the least.”

Onto something are we?

You just described the entire System of Justice in its current state. People being arrested, socially excoriated, fired from jobs, damaged lively hoods, rigid and perverse jails, antagonistic and abusive law enforcement behavior.

Any of the above can be enacted upon you for nothing more than mere suspicion or accusation. We already punish people for just being accused or in the wrong place at the wrong time.

Steve R. (profile) says:

The Left Attempts to Shutdown Expressing Conservative Speech

Exposing attempts by right to limit “Free Speech” is good. But the left’s unrelenting attack on “Free Speech” may be just as onerous.

The left increasingly claims that conservative viewpoints, when expressed, constitute “Hate Speech” that should be subject to adverse legal actions by the government (Federal, State, Local, University) and that those who feel terrified by these alien (conservative) concepts have government established “safe spaces” to protect them.

DannyB (profile) says:

Re: If the First Amendment is tampered with...

Don’t think the first amendment can’t go away. All it would take is a fascist government. All our rights could go away. They already are disappearing by inches. Our government is already dysfunctional and corrupt. And getting worse every year. And IMO it’s gone too far to ever be fixed. (Not that I don’t wish it were otherwise.)

It seemed unthinkable that Trump could be elected. But here we are. Insanity seems to be the rule of the day. It’s not off topic to mention Trump, after all this TD article is directly a result.

Anonymous Coward says:

“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.”

I think that should say the Supreme Court has put boundaries, not the Constitution.

And personal right to carry was “totally settled law” until Heller came along.

Anonymous Coward says:

I’m troubled by the appearance of censorship by traditional media sources (CNN, Washington Post, MSNBC, and so forth) in coordination with technology companies (Google, Facebook, Twitter). The targets of this censorship campaign are up-and-coming or smaller sites such as Techdirt which are increasingly the first to break big news.

Anonymous Coward says:

Democrats have already tried.

The Democratic leadership tried a similar attack against free speech back in 2013. Ironic how both parties wish to muzzle the internet.

The ‘D’ party’s attack was much more insidious as it would have blocked private citizens from expounding their views in public. Only those deemed ‘journalist’ would be allowed to publish publicly.

I still remember the headlines that Sen. Diane Feinstein made when she said, I’VE HAD IT UP TO HERE. Citizen journalists and bloggers should not be covered by a federal shield law.

“Feinstein wants to limit who can be a journalist” said and at EFF:”Why Sen. Feinstein Is Wrong About Who’s a “Real Reporter”

Anonymous Coward says:

Re: Re: Democrats have already tried.

I didn’t mean to disturb your grieving for Hillary. But knowing both parties are involved or have been is important. The dems and repubs could easily form a bi-partisan group to force through a very nasty pro-SLAPP law against the general public expressing their views in forums like this..

Docrailgun says:

Yes they can,,,

So is everything the Trump Admin says or does, but it doesn’t stop them.
Remember that the Reublicans control all branches of government at this point since Gorisch was confirmed. So, the President can do whatever he wants and all we can do is hope that the ACLU sues him and someone one of the conservative SCOTUSers finds a backbone somewhere. But, they probably won’t.
“It’s dumb, it’s wrong and it makes no sense.”

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...