Don't Throw Out The First Amendment's Press Protections Just Because You Don't Like President Trump

from the not-how-it-works dept

Back in April, when the DNC first sued a whole bunch of people and organizations claiming a giant conspiracy between the Russians, Wikileaks and the Trump campaign, we warned that beyond the complaint including a ton of truly nutty claims, it was also an attack on the 1st Amendment. Much of what was described as violating the law by Wikileaks and others was classic journalism activity — and a ruling in favor of the DNC would do massive harm to the 1st Amendment. Indeed, as the case has continued to move forward, more and more media organizations are warning about the possibility of a catastrophic outcome for news media should the DNC win this case.

Perhaps ironically, this puts Donald Trump on the same team, legally, as the people he repeatedly insists are “the enemy of the people.” His lawyers, of course, don’t mind the double standard and have been quick to correctly wrap themselves in the First Amendment to try to get the lawsuit dismissed. This is the proper result.

Unfortunately, Trump derangement syndrome means that otherwise competent people keep searching for a “but, Trump… ” exception to the 1st Amendment. Over at Just Security, two former Obama White House lawyers — Bob Bauer and Ryan Goodman — try to argue the case for why the 1st Amendment doesn’t protect the Trump campaign in this case. The crux of their argument is that the campaign was a lot more involved in seeking damaging information, rather than just passing it around once it had been leaked.

It is on fundamental factual distinctions between Bartnicki and the Trump case that the campaign?s First Amendment theory founders.  Unlike Bartnicki?s radio host, the campaign is not free of involvement in illegal activity. It did not merely comment on what the Russians and WikiLeaks conspired to make public. It willfully engaged with both the Russians and WikiLeaks in both the pursuit and the publication of the stolen emails?actions that bump up against clear prohibitions in federal campaign finance law. Foreign nationals may not contribute or spend funds to influence an American election, and, crucially, a U.S. political campaign cannot assist or act in coordination with foreign electoral intervention.

We know that the Russians were peddling assistance to a receptive campaign, that the campaign learned as early as April 2016 that Russians possessed stolen emails, th… Jr. advised the Russians on when to release derogatory information (?later in the summer?), that the Russian hacking operation continued long after the Russians first made contact with and were greeted receptively by the campaign, that the president himself publicly encouraged the Russian government to locate the so-called ?missing? Clinton emails, and that Russian spies quickly followed by trying to hack Clinton?s personal email. There are also reports that the Russians may have previewed the plan to disseminate the emails before ever doing so.  For the purposes of the ongoing civil suit, those allegations alone rob the campaign of its current defense.

But those paragraphs make a ton of assumptions, often without enough evidence to back it up. But much, much, much worse is the following paragraph that Bauer and Goodman put in, claiming that the media shouldn’t be concerned about the 1st Amendment impact of this case:

There is misplaced concern that a defeat for this First Amendment defense puts media protections at risk. Federal campaign finance regulation supplies useful guidance here: It exempts standard journalistic activity, but denies those protections to conduct outside the ?legitimate press function.? It is clear from disclosures by an internal WikiLeaks critic and other materials that Julian Assange targeted Hillary Clinton and sought to work with the Trump campaign and the Russians to secure her defeat. This is not a ?legitimate press function.? And the conflation of Wikileaks? plan of campaign attack with standard journalistic activity undermines important distinctions critical to the protection of the free press.

That paragraph is frightening and should worry anyone who believes in the 1st Amendment’s protections for the press. These lawyers are basically arguing that they get to decide what is and what is not a “legitimate press function” and that working with a campaign automatically makes it not a legitimate press function. As Glenn Greenwald notes, there’s a viable argument that under the description that Bauer and Goodman lay out here someone could just as easily argue that Vox or MSNBC aren’t protected by the 1st Amendment either:

Some will argue that there are differences of degree and level of cooperation, but even if that’s true (and it’s not clear that it is), you’ve already wiped out the basic 1st Amendment protections because now every media outlet will need to argue, over and over again, whether or not any of its activity counts as “a legitimate press function.” That would create massive chilling effects, and is a standard that could be easily abused.

Hell, just to bring this all back around, it doesn’t take a stable genius to figure out what President Trump would start doing if he could argue the 1st Amendment doesn’t apply to publications engaged in things that are “not a legitimate press function.” And, incredibly, the DNC seems to want to hand him this very power. It’s mind-boggling.

Dan Froomkin has an excellent reply to the Bauer/Goodman piece. He agrees that there may be some violations of the law buried in everything, but lumping in Wikileaks (even as he calls Julian Assange’s recent activities “despicable”) here is an attack on the basic 1st Amendment protections for journalists. Even if you dislike Trump massively, supporting these arguments is an attack on the press that will come back to bite everyone by handing the government and others a tool to argue that certain press activities are somehow not protected for not being “a legitimate press function.”

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Comments on “Don't Throw Out The First Amendment's Press Protections Just Because You Don't Like President Trump”

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That One Guy (profile) says:

Re: 'He had a BB gun. You gave him a tank. Great job there.'

Yeah, I really could do without someone who throws out the term ‘fake news’ on a regular basis having a legal precedent that news agencies who aren’t engaged in ‘legitimate press functions’ aren’t protected by the first amendment.

If those bringing the lawsuit and defending think that that won’t be used against them almost immediately then they haven’t put enough thought(read: any) into the matter beyond ‘Must win case’.

That One Guy (profile) says:

The 'turnabout is fair play' test

What those bringing the lawsuit, and those defending it, should ask themselves is ‘Would we accept and be fine with the other side using this against us?’

If the standards they want to set are ones that they themselves would object to, then that’s a pretty good indicator that they shouldn’t be pushing for them, because once that weapon has been added to the arsenal it’s not ‘Will this be used by people I don’t like?’ but ‘How soon will this be used by people I don’t like?’

Whether legal precedent or law, one should always imagine your worst enemy having full access to it the second it’s on paper. If you wouldn’t be okay with that, then you shouldn’t be pushing for the precedent/law in question.

Anonymous Coward says:

Re: Re: The 'turnabout is fair play' test

Correct. It doesn’t have anything do with whataboutism.

Whataboutism is people asking “But what about thing X” when someone brings up thing Y, in an attempt to deflect worry over thing Y. “What about Obama’s leaker hunts?” is a common reference when Trump’s leaker hunts are brought up.

This is not whataboutism. This is “This bad precedent you are trying to set will immediately be used against you. Do you think this is a wise thing?”

As applied to this specific context, whataboutism would be someone bringing up some bad legal precedent that the Trump administration has sought in an attempt to deflect concern over the DNC’s attempts to weaken the first amendment.

Hope this helps.

Anonymous Coward says:

Re: The 'turnabout is fair play' test

‘Would we accept and be fine with the other side using this against us?’

It appears you are describing a rational thought process.
I doubt it needs to be pointed out, but I will anyway …
these folk are not rational and it is questionable whether they think much at all about what they are doing.

Paul says:

Re: Re:

There’s plenty of rational people, even left leaning people like me, who have used the phrase to describe the irrational, illogical desire some have to oppose Trump in any and every way. The kind of people who will not only cut off their nose to spite their face, but gleefully do it as long as causes some resistance against Trump, regardless of the broader impacts.

Anonymous Coward says:

Re: Re:

Charles Krauthammer is credited with originating the phrase trump derangement syndrome which is very similar to his bush derangement syndrome. Both of these terms are meant to be used in a derogatory manner when describing those who oppose your policies. The phrase is meaningless in a real sense in that it is used in a variety of situations by those who lack any awareness of its origin or intended meaning.

side note: I think it is rather well established, at least among the professional members of the medical field that specialize in mental issues, that Mr Trump has a condition known as narcissistic personality disorder. Ordinary peoples’ reaction to this is predictable and not indicative of any sort of mental issues, but please go ahead and continue your use of this phrase because it allows others to know in advance of your predisposition.

Thad (profile) says:

Re: Re: Re:

side note: I think it is rather well established, at least among the professional members of the medical field that specialize in mental issues, that Mr Trump has a condition known as narcissistic personality disorder.

Respectfully, if any member of the medical field proposes a diagnosis for an individual who they haven’t actually met, that leads me to question just how professional they are.

Thad (profile) says:

Re: Re: Re: Re:

The Goldwater Rule isn’t a law, it’s an ethical standard.

It’s true that Goldwater won a substantial award in Goldwater v Ginzburg, but it was a libel case, and it was against the editors and publishers who solicited and published psychiatrists’ opinions on Goldwater’s mental fitness, not the psychiatrists themselves.

Whether such a libel suit would be successful today is hard to guess.

Nonetheless, I agree with your broader point: any doctor who expresses a diagnostic opinion of a person they’ve only seen on TV should be viewed with great skepticism.

Anonymous Coward says:

Re: Re: Re: Re:

One day in the future, those who do this are going to face serious legal consequences

Only in your Magical Trump Wonderland where orangutans are stable geniuses and despots are revered. Fortunately for the rest of the world the lifespan of this Land-O-Insanity is brief.

Everything Trump does now will be reversed by the non-Republican who takes over the oval office.

Scote (profile) says:

Re: Re: Re:3

With twitter and other outlets, Trump’s vast body of public actions and statements create a massive corpus that is likely more than sufficient to form a basis for diagnosing narcissistic personality disorder, more information than a doctor would or could glean from a brief interview. It is not a subtle disorder, nor one that is hidden from public view.

A doctor, for instance, doesn’t need an X-Ray to diagnose a bone sticking out of a person’s leg as broken bone. Even a lay person can do that. Exact diagnosis of the details and treatment is a different matter, but let’s stop pretending that Trump’s blatant narcissism can only be reliably diagnosed by a doctor in a clinical setting.

Scote (profile) says:

Re: Re: Re:5

Indeed it is. And Trump’s increasingly divorced from reality narcissism is a clear danger to others. It’s actually appropriate for medical professionals to call attention to such a danger rather than hide under a rock. This isn’t something subtle. It’s not a mental illness that only affects Trump. It doesn’t require lab tests. Trump scores max on all the indicators for clinical narcissism.

Thad (profile) says:

Re: Re: Re:6 Re:

It’s actually appropriate for medical professionals to call attention to such a danger rather than hide under a rock.

That’s a reasonable argument to make, but I think it’s a fraught one.

It doesn’t require lab tests. Trump scores max on all the indicators for clinical narcissism.

Those two statements are contradictory. You can’t reliably score psychological metrics outside of clinical parameters.

Your argument also appears to be "Even someone who’s not a medical professional can tell he’s a narcissist; that’s why it’s important for medical professionals to say he’s a narcissist." That seems pretty contradictory too.

At any rate, there are many, many reasons why Trump is a danger; they are public, they are well-known, and they don’t seem to be making a whole lot of difference to public perception. Trump’s approval rating is typical for two years into a president’s term, and the outcome of this week’s election was within expected parameters: an overall win for the opposition party, but not a spectacular one.

If you think warnings from medical professionals about Trump’s mental state will change public perception of him, evidence to date does not bear that hypothesis out.

Scote (profile) says:

Re: Re: Re:7 Trump's Clinical Narcissism pegs the needle

“Those two statements are contradictory. You can’t reliably score psychological metrics outside of clinical parameters.”

Yeah, that’s true of more complicated diagnosis based on subtle indicators. Not really true in the case of Trump, who may be the most clearly documented case of NPD the world has ever seen. Not to be too flippant about it, but he literally puts his name in giant gold letters the things he owns and talks about himself in the 3d person.

Again, back to the broken bone diagnosis when it is sticking outside of someone’s leg. You don’t get say that “you can’t reliably diagnose that as a broken outside of clinical parameters”. Bone sticking outside of someone’s leg is definitive. The rest of the check list is irrelevant to the fundamental diagnosis of “compound fracture”. Same goes for Trump’s extraordinary NPD.

Anonymous Coward says:

Re: Re:

It has been abundantly established that Mike is no fan of Trump, and in fact seems pretty biased against him. If you see Mr. Masnick using the term “Trump derangement syndrome” to describe someone, it’s pretty fair to assume the people being so described are in fact acting deranged.

For a perfect example see the attack on the 1st amendment described in this very article that you didn’t read.

Scote (profile) says:

“Unfortunately, Trump derangement syndrome”

Really? I reject that sort of characterization from either side and I certainly didn’t expect to see that nonsense here. People can be against trump, and even possibly be inconsistent about principles, without being “deranged.”

Please stop using nonsense accusations like “Trump derangement syndrome”. It’s the kind of crap an AC poster would use against you, Mike.

Anonymous Coward says:

Re: Re:

It’s “derangement” when it leads to irrational and self-harmful behavior. That’s not an unreasonable definition, and the condition clearly exists.

It’s certainly possible to oppose Trump without being deranged; but, as this article points out, being against free speech protections because Trump is one of the beneficiaries is nuts.

Scote (profile) says:

Re: Re: Don't use right wing ad hominems

“It’s “derangement” when it leads to irrational and self-harmful behavior. That’s not an unreasonable definition, and the condition clearly exists.”

Yeah, no.

You and mike get to disagree with whether this suit is a good idea or not, but that in no way makes the people behind it “irrational”. Mike’s use of “Trump derangement syndrome” is an endorsement of a right wing nonsense talking point – an false ad hominem used to categorically smear liberals in an attempt to poison the well and not have to deal with actual facts. One could just as easily argue, by your defense and definition of the term “derangement,” that Mike is being “deranged” for invoking TDS as a being a real thing. So, really not a good idea.

Scote (profile) says:

Re: Re: Re: Re:

“It’s possible to criticize a double-standard without adopting propaganda terms promoted by partisan water-carriers. I didn’t like “Obama Derangement Syndrome” or, before that, “Bush Derangement Syndrome” any better.”

Agreed. Whether it’s OBS or TBS, the terms are invoked to stop a conversation by calling the opposition “deranged”. So it’s a really inappropriate way for Mike to try to start a conversation about a nuanced disagreement about the contours of the First Amendment.

Thad (profile) says:

Re: Re:

Most kinds of lying are protected speech. Libel and slander (forms of defamation) are not, but they are narrowly defined in US law. Techdirt has covered the nuances of defamation law in various states at considerable length; here’s a relevant recent article:

Will Donald Trump Support A Federal Anti-SLAPP Law Now That It’s Helped Him Win Stormy Daniels’ Defamation Suit?

A court ruled that Trump’s accusation that Stormy Daniels was lying about being threatened was not defamation but bluster and hyperbole. That was the correct result. I hate to be on the same side as Trump on anything, but what he said in that instance was not defamatory.

Anonymous Coward says:

Re: Re:

Oh, TD has a bias. It’s just not the bias that they are accused of.

TD is biased in favor of strong First Amendment protections for all. TD is biased in favor of good regulations where and when appropriate, and biased against bad regulations. TD is biased in favor of limited copyright, limited and specific patents, and limited and specific trademarks.

TD has a bias. It may even be “left” depending on how you define left. But again, it’s not the bias that they’re accused of.

Sok Puppette (profile) says:

The basic problem is that US campaign finance law is incompatible with the First Amendment to begin with. The FA doesn’t say anything about excepting foreign actors. Of course you’re going to end up with a mess when you start trying to find exceptions that aren’t there.

Pretty much every choice made in Buckley was the opposite of what you’d want, but the basic problem was that it’s ALL unconstitutional. And it’s left us with a system that affects relatively small contributors MORE than large ones. Joe Billionaire can set up a PAC and run a billion ads.

You might be able to convince me that the FA should exempt corporate speech and ANYTHING delivered via advertising, or maybe distinguish between speech and the financing of speech. But that would be hard to write, and it doesn’t say that now.

… and if the US is going to try to run the world, I don’t see why I should be protected from foreign opinions.

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