Last year, we wrote about Donald Trump’s bullshit lawsuit against Iowa pollster Ann Selzer for releasing surprising polls right before the 2024 election suggesting that Kamala Harris might actually beat Donald Trump in Iowa. The polls turned out to be wrong—as polls sometimes are—and Trump decided this was grounds for a lawsuit. That case continues with a bunch of nonsense legal gamesmanship.
But Trump’s lawsuit wasn’t the only one. A separate “class action” lawsuit was filed against Selzer and the Des Moines Register by Dennis Donnelly, a random Des Moines Register subscriber who claimed the poll constituted “fraud,” “professional malpractice,” and—even more ridiculously—”interference with the right to vote.” It was basically a copycat lawsuit of Trump’s to try to put more pressure on Selzer and the Des Moines Register.
Polls, like nearly all speech, are protected by the First Amendment. To get past that rather large hurdle, a plaintiff would need to show the poll was somehow both false and made with “actual malice”—not that it was mean-spirited, but that Selzer basically knew it was “false” when she published it.
That’s a problem when the “expression” in question is a poll based on data Selzer actually collected. It’s an opinion derived from methodology, not a factual claim that can be “false.”
Finding actual malice requires Donnelly to plausibly allege Defendants sacrificed decades of work in cultivating this reputation for accuracy by “knowingly or recklessly” manufacturing a poll they knew was incorrect in pursuit of an unclear goal. See ECF No. 36 at 33. With no factual allegations to support such an assertion and mere conclusory statements, Donnelly asserts only a bare legal conclusion accompanied by actual malice buzzwords that Defendants acted knowingly or recklessly. This is insufficient to meet the plausibility standard….
The court’s response to the “fraudulent misrepresentation” claim is even more brutal:
No false representation was made. Defendants conducted a poll using a particular methodology which yielded results that later turned out to be different from the event the poll sought to measure. The results of an opinion poll are not an actionable false representation merely because the anticipated results differ from what eventually occurred…. Donnelly, and all other readers, knew how the poll was conducted because the poll results were accompanied by a thorough discussion of methodology…. Donnelly does not claim the disclosed methodology was not followed, that results were falsified, or that Defendants altered the poll in some other way which did not reflect the publicly disclosed methodology. Defendants told readers exactly what they did and how they did it. Therefore, no false representation was made.
The court then highlights the absurdity of Donnelly’s position by applying his own logic to the polls he cited favorably:
Donnelly cites to several other polls which had then-candidate Trump ahead by between seven and nine points…. The actual margin of the election was thirteen points…. Donnelly cites these other polls favorably, yet, by his definition of misrepresentation, every single one of these polls cited also “was all wrong.” … These polls were not fraudulently misrepresenting the state of the race, they merely used different methodologies in an attempt to best capture a snapshot of a dynamic race. … Donnelly fails to cite to any authority finding an opinion poll of a future event constitutes a false factual assertion.
The “professional malpractice” claim fares no better. The court compares it to suing a weather forecaster for an incorrect prediction and walks through the parade of absurdities that would follow:
Donnelly’s claim also fails because political opinion polls are predictive and inherently uncertain. Defendants here carried out a randomized survey and published the results along with a full explanation of the poll methodology. Donnelly’s novel attempt to impose liability for news prediction is similar to Brandt v. Weather Channel, Inc. in which a plaintiff sought to hold a news channel liable for an inaccurate weather forecast…. That court noted “to impose such a duty would be to chill the well established first amendment rights of the broadcasters.” Id. at 1346. The court in Brandt further observed the litany of absurd suits which could follow from imposing such a duty, such as construction workers suing when they pour concrete in reliance on a weather report forecasting no rain or commuters suing when they are stuck in traffic and late to work because the news reported there would be light traffic. Id. Finding for Donnelly here would permit similar absurdity. The Court declines to permit such absurdity and finds Defendants owed no such duty to Donnelly.
This ruling doesn’t just dismiss Donnelly’s lawsuit—it preemptively demolishes every argument Trump is using in his own case. As Jacob Sullum at Reason points out, Trump’s lawsuit is even weaker than Donnelly’s already pathetically weak case:
If anything, Trump’s fraud claims are even less plausible than Donnelly’s. Donnelly, who sued on behalf of all Des Moines Register subscribers, actually has a commercial relationship with the newspaper. Trump, by contrast, does not seem to have any such connection with the Register or Selzer. But both lawsuits suffer from the same basic problem: Because they treat misleading journalism as actionable fraud, they amount to thinly veiled assaults on freedom of the press.
Of course, these lawsuits were never really about having plausible claims. These lawsuits exist to send a message: publish anything that favors a political opponent of Donald Trump, and he and his MAGA allies will bury you in litigation. It doesn’t matter if the cases are frivolous. The process is the punishment, and the threat of more lawsuits is the deterrent. That’s not a legal strategy—it’s a censorship campaign dressed up in legal paperwork.
60 Minutes is under new management and things are getting stupid faster than you might expect. Last night’s episode featured President Trump, which is currently being described as “nuts.” There are all sorts of crazy moments to call out, but let’s start with the recursively meta nonsense.
60 Minutes edited out a segment where Donald Trump tells them to edit out a segment in which he brags about getting CBS to pay him because of them editing out part of an answer by Kamala Harris, and he notes that CBS clearly did the wrong thing in editing Harris in the same fucking sentence he tells them to edit out what he’s saying.
It is so fucking stupid.
As you’ll no doubt recall, last year, Trump sued CBS over the show. Right before last year’s election, 60 Minutes had interviewed Kamala Harris. As every such news show does, it had edited the interview down to make it fit into the TV time slot. MAGA culture warriors, desperate for anything to culture war about, started screaming that 60 Minutes had edited Harris to sound more coherent. This was nonsense.
What had happened was that in one question, Harris had given a long answer. CBS broadcast part of the answer on 60 Minutes. But it had broadcast a different part of that answer during the CBS Sunday morning show, Face the Nation. This… happens all the time. The full answer was too long. They edited it down to a shorter bit. The two different broadcasts chose different parts. That’s basic, fundamental, editorial discretion.
Given how often Trump is edited to make him sound more coherent, he should appreciate this. But Trump will never, ever care about how much leeway he is given and will always seek to gain whatever advantage he can. So he sued, claiming it was “election interference,” which it wasn’t. And even if it was (it wasn’t) he still won the election.
But Trump’s censor in chief Brendan Carr made it clear that the only way he’d approve Paramount’s (owner of CBS) sale to Skydance was if they first bribed Trump by agreeing to settle this frivolous case. So they paid a $16 million bribe just to get the case settled, while agreeing to install a Trump lackey as an internal censor at the network.
Trump’s full interview was 73 minutes long, but 60 Minutes only aired 28 minutes of it. They then did release the longer interview online along with a transcript, which caused people to look at what was edited. And that included this segment:
TRUMP: And actually 60 Minutes paid me a lotta money. And you don’t have to put this on, because I don’t wanna embarrass you, and I’m sure you’re not– you have a great– I think you have a great, new leader, frankly, who’s the young woman that’s leading your whole enterprise is a great– from what I know.
I don’t know her, but I hear she’s a great person. But 60 Minutes was forced to pay me– a lot of money because they took her answer out that was so bad, it was election-changing, two nights before the election. And they put a new answer in. And they paid me a lot of money for that. You can’t have fake news. You’ve gotta have legit news. And I think that it’s happening. I see–
NORAH O’DONNELL: Mr. President–
TRUMP: –I see good things happening in the news. I really do. And I think one of the best things to happen is this show and new ownership, CBS and new ownership. I think it’s the greatest thing that’s happened in a long time to a free and open and good press.
Again, I feel the need to repeat this because it is so incredibly stupid. Literally in the same sentence where he says CBS had to pay him “a lotta money” because it edited a 60 Minutes interview, he tells them to edit the interview not to air that section. Then he claims “you can’t have fake news.” Even though what he’s claiming is literally fake news. They didn’t pay him because they changed the answer. They paid him to get their merger done. Everyone knows it.
And, yes, I’m sure some people will try to defend this, but come on. There’s no defense. The President views everything in simple terms: “if it helps me, it’s good, if it doesn’t, it should be illegal.” It’s a narcissistic simpleton’s understanding of the world. And he’s in charge. It’s fucking crazy.
Speaking of fucking crazy, there were so many other crazy bits in the interview, but let’s just call out two. After all, the request to edit the section of the interview, while hypocritical, is nothing compared to the blatant corruption he admits to, or his desire to unleash the American war machine on American people.
Let’s start with this: just last week, MAGA loyalist Rep. James Comer released what may be the least self-aware report ever, screaming about how White House aides covered up Joe Biden’s mental and physical decline and because of that he didn’t know who he was pardoning, meaning those pardons should be null and void.
This comes the same week that people are raising serious questions about White House aides covering up the true nature of Trump’s physical and mental decline. And, now he’s admitting he has no idea who he’s pardoning—the very thing the Comer report claims means the pardons are void.
Two weeks ago, Trump (or whoever within the White House) pardoned CZ, the founder of Binance, who had pleaded guilty to money laundering. Though, when asked about it that day, Trump appeared to have no idea who CZ was, even though he had also (just coincidentally) given billions to the Trump family’s cryptocurrency business.
And even though he’d flubbed that question when he was asked about it right after the pardon was announced, when 60 Minutes asked him about it, he doubled down—seemingly proud of his ignorance. Which is bold, considering his administration’s entire argument against Biden’s pardons rests on the claim that Biden didn’t know who he was pardoning:
O'DONNELL: Why did you pardon Changpeng Zhao?TRUMP: Are you ready? I don't know who he isO'DONNELL: His crypto exchange Binance helped facilitate a $2b purchase of World Liberty Financial's stablecoin. And they you pardoned him.TRUMP: Here's the thing — I know nothing about it
From the full (unedited) transcript, which is way worse than that short clip above:
NORAH O’DONNELL: This is a question about pardons. The Trump family is now perhaps more associated with cryptocurrency than real estate. You and your son– your sons, Don Jr. and Eric, have formed World Liberty Financial with the Witkoff family.
PRESIDENT DONALD TRUMP: Right.
NORAH O’DONNELL: Helping to make your family millions of dollars. It’s in that context that I do wanna ask you about crypto’s richest man, a billionaire known as C.Z. He pled guilty in 2023 to violating anti-money laundering laws.
PRESIDENT DONALD TRUMP: Right.
NORAH O’DONNELL: Looked at this, the government at the time said that C.Z. had caused “significant harm to U.S. national security”, essentially by allowing terrorist groups like Hamas to move millions of dollars around. Why did you pardon him?
PRESIDENT DONALD TRUMP: Okay, are you ready?I don’t know who he is.
Trump’s own administration is claiming Biden’s pardons are invalid because he didn’t know who he was pardoning. And Trump just proudly announced, on camera, that he has no idea who CZ is.
Then he admits that his sons basically told him to do this for their crypto business:
My sons are involved in crypto much more than I– me. I– I know very little about it, other than one thing. It’s a huge industry. And if we’re not gonna be the head of it, China, Japan, or someplace else is. So I am behind it 100%. This man was, in my opinion, from what I was told, this is, you know, a four-month sentence.
But this man was treated really badly by the Biden administration. And he was given a jail term. He’s highly respected. He’s a very successful guy. They sent him to jail and they really set him up. That’s my opinion. I was told about it.
By who? Who told you about it? A good reporter would have stepped in and asked that question, but this is the new Bari Weiss 60 Minutes where you won’t see follow-ups like that. Or if you did, they’d be edited out.
He continues:
I was told that he was a victim, just like I was and just like many other people, of a vicious, horrible group of people in the Biden administration.
Again, “who told you this?” is the next question any reporter should be asking. O’Donnell did not. Though she at least did point out that he pleaded guilty to allowing terrorist groups to engage in money laundering, which seems notable for a guy who keeps talking about fighting crime.
NORAH O’DONNELL: The government had accused him of “significant harm to U.S. national security”–
PRESIDENT DONALD TRUMP: That’s the Biden government.
NORAH O’DONNELL: Okay. Allowing U.S. terrorist groups to, you know, essentially move millions of dollars around. He pled guilty to anti-money laundering laws. That was in 2023. Then in 2025 his crypto exchange, Binance, helped facilitate a $2 billion purchase of World Liberty Financial’s stablecoin. And then you pardoned C.Z. How do you address the appearance of pay for play?
PRESIDENT DONALD TRUMP: Well, here’s the thing,I know nothing about it because I’m too busydoing the other–
Um. Isn’t that exactly why your administration is claiming Biden’s pardons don’t count?
NORAH O’DONNELL: But he got a pardon–
PRESIDENT DONALD TRUMP: I can only tell you that–
NORAH O’DONNELL: He got a pardon–
PRESIDENT DONALD TRUMP: Norah, I can only tell you this.My sons are into it. I’m glad they are, because it’s probably a great industry, crypto. I think it’s good. You know, they’re running a business, they’re not in government. And they’re good– my one son is a number one bestseller now.
So here Trump admits (1) he doesn’t know who CZ is, then (2) admits that basically his sons are the ones into cryptocurrency and “not in government,” and effectively admits that (3) he pardoned CZ on the advice of his sons, who directly profit from the pardon through their cryptocurrency business, while claiming ignorance of the entire arrangement.
This isn’t just yet another example of the most corrupt pay-for-play administration in the history of the United States but one that literally does everything it falsely accuses past administrations of doing, but way worse. Just as they’re claiming that Biden’s pardons weren’t valid, Trump is effectively admitting he has no idea who he’s pardoning, but he’s doing it to help his corrupt sons.
And I won’t even get into the frenzy MAGA continues to go through about Hunter Biden supposedly enriching himself by using his father’s name. Remember all those stories claiming payoffs to the “Biden family”? Funny how those folks are all silent about the Trump family (1) actually doing what they falsely accused Biden of doing and (2) doing it way, way, way worse.
Speaking of crime, another part of the interview involves the President falsely claiming that immigration enforcement is targeting criminals (leaving aside that he keeps pardoning criminals).
When O’Donnell asks about CBP’s tactics in Chicago—tear-gassing residential neighborhoods, smashing car windows—Trump’s response is to call for more violence:
O'DONNELL: Americans have been watching videos of ICE tackling a young mother, tear gas being used in a Chicago residential neighborhood, and the smashing of car windows. Have some of these raids gone too far?TRUMP: No. I think they haven't gone far enough.
NORAH O’DONNELL: More recently, Americans have been watching videos of ICE tackling a young mother, tear gas being used in a Chicago residential neighborhood, and the smashing of car windows. Have some of these raids gone too far?
PRESIDENT DONALD TRUMP: No. I think they haven’t gone far enough because we’ve been held back by the– by the judges, by the liberal judges that were put in by Biden and by Obama. We’ve been held–
NORAH O’DONNELL: You’re okay with those tactics?
PRESIDENT DONALD TRUMP: Yeah, because you have to get the people out. You know, you have to look at the people. Many of them are murderers. Many of them are people that were thrown outta their countries because they were, you know, criminals. Many of them are people from jails and prisons. Many of them are people from frankly mental institutions. I feel badly about that, but they’re released from insane asylums. You know why? Because they’re killers.
Note the question: she’s asking him about ICE (actually CBP) tear gassing residential neighborhoods and smashing car windows. And he says “they haven’t gone far enough.” He literally thinks he should be able to have the military attack Americans.
And he’s completely full of shit about targeting “criminals and murderers.” The vast, vast majority of them are not. Over 90% of those being grabbed have never been convicted of a violent crime. We already know that Trump’s advisor Stephen Miller has told immigration officials to just grab anyone they can and to ignore any efforts to target actual criminals (because Miller knows there just aren’t that many in reality—it was all a myth they fed Fox News to get Trump elected).
But Trump is so disconnected from reality he doesn’t know that.
And speaking of disconnected from reality: he still thinks migrants “seeking asylum” means they’re literally from mental institutions. He’s been making this claim for years. No one has corrected him. No reporter has asked him to clarify. The President of the United States genuinely appears to believe that foreign governments are emptying psych wards and shipping patients to America because they’re “seeking asylum.”
So let’s recap: in a single interview, the President (1) suggests CBS edit out his complaints about CBS editing while simultaneously claiming CBS’s past editing was corrupt enough to sue over, (2) admits he pardoned someone he’s never met on the advice of unnamed people who are most likely his sons who profit directly from that pardon—the exact scenario his own party claims invalidates Biden’s pardons, and (3) endorses escalating violence against American citizens in residential neighborhoods while lying about who’s being targeted and seemingly unable to comprehend who the violence is actually being used against.
We have a President so catastrophically disconnected from reality that he’ll pardon anyone his sons tell him to, endorse any level of violence his advisors suggest, and contradict himself in the same sentence without noticing. The people around him—his kids, his advisors, his handlers—do the things they’ve spent years accusing others of doing (except way worse), and Trump happily goes along with it because he either doesn’t understand or doesn’t care. They get away with it, and they do it again, more brazenly.
The media that’s supposed to be holding him accountable has instead hired a Trump-approved censor to monitor their coverage and installed an inexperienced right-wing propagandist to run their newsroom. So when Trump sits down for an interview and admits on camera that he’s doing exactly what he’s claiming others should be jailed for… they don’t follow up or ask any tough questions.
Donald Trump has made it quite clear that he views his reelection as not just a vindication of his views, but as a blessing for his plan to bring vengeance on those who disagree with him. His cabinet picks are following in his footsteps on that, with various threats of lawsuits flying this way and that. And now he’s filed his most ridiculous sore winner lawsuit yet: suing one newspaper and pollster who suggested Kamala Harris had a lead in Iowa.
Trump, himself, never one to shy away from filing vexatious SLAPP suits, seems emboldened by Bob Iger’s decision to settle the case Trump had filed earlier this year against ABC and George Stephanopoulos. That case was very dumb, but because Stephanopoulos made the case more complicated than it needed to be, a judge refused to dismiss it earlier this year. At that point, it starts to get expensive, and Iger seemed to do the math that, with all the attacks the GOP has made on Disney, it was better to comply and kiss the ring — an unfortunately common occurrence for media moguls these days.
That said, this latest lawsuit is monumentally stupid. Ann Selzer, who had previously been called “the best pollster in politics,” clearly ran a single very bad poll in Iowa right before the election for the Des Moines Register. It caught a lot of attention as it showed Kamala Harris up by a few points on Donald Trump in a state that no one thought Harris would win. This really upset a lot of people at the time, but in the end, it was just a bad poll. It happens.
But, according to this new lawsuit, this one bad poll was… apparently election interference? That’s according to the complaint filed on Monday in an Iowa state court. While Trump had mentioned his intention to sue, Puck News broke the story of the actual lawsuit, but they get no link from me because they quoted from the complaint without including a link to it (my link above in this paragraph is directly to the complaint).
The complaint is laughable because Trump clearly can’t show any damages. He won the election, he won Iowa, so what harm occurred here? The lawsuit claims the poll was part of a Democratic plot to suppress Republican voting, but provides no evidence for this conspiracy theory. If anything, an inaccurate poll showing Democrats ahead would likely motivate more Republicans to turn out and vote.
The idea that you could sue pollsters for releasing poll results that differ from the final election outcome is absurd and dangerous. Polls are snapshots of voter sentiment at a given time, not ironclad predictions. Even the best pollsters are sometimes off the mark. It’s the nature of polling. They could have a bad sample or a bad polling system. Or their weighting system could be off. It happens. It shouldn’t be against the law to make a bad prediction.
Pollsters shouldn’t have to fear lawsuits for doing their jobs. If this is allowed to stand, it could have a severe chilling effect on political polling. What pollster would want to risk being sued by an angry candidate every time they release results?
Indeed, even if the judge dismisses this lawsuit as baseless, if they don’t also sanction the lawyers for filing such a garbage case, it will still create a chilling effect among pollsters, who will likely worry that they might have to go through such a costly and stressful legal process anytime they publish unfavorable numbers.
Unfortunately, with no anti-SLAPP law in Iowa, and Congress being unwilling to vote on a federal anti-SLAPP law, there’s not much to deter frivolous lawsuits like this that aim to punish and silence protected speech, unless this particular judge decides to make an example of Trump and his lawyers here. But I’m not holding my breath.
The complaint reads more like the whining of an insecure man-child who can’t handle criticism than a legitimate legal argument. I mean, look at this unhinged rant:
This poll—purporting to show that President Trump’s commanding lead all but vanished upon Harris’s entry into the race—was indicative of Defendants’ intent, even as early as September, to paint an incorrect and cynical picture of the downward trajectory for President Trump in the face of a supposedly turbocharged Harris Campaign. In truth, Harris’s hollow message of “joy” was missing badly with voters across all demographics and regions, who craved actual policy changes that only President Trump can and will deliver
Any court that cares about the First Amendment should dismiss this case and sanction Trump’s lawyers for filing it. Sadly, these days, that’s far from guaranteed, as many judges seem willing to ignore basic First Amendment principles, often through MAGA-tinted glasses.
But, this whole thing is just painfully stupid:
For too long, left-wing pollsters have attempted to influence electoral outcomes through manipulated polls that have unacceptable error rates and are not grounded in widely accepted polling methodologies. While Selzer is not the only pollster to engage in this corrupt practice, she had a huge platform and following and, thus, a significant and impactful opportunity to deceive voters. As Selzer knows, this type of manipulation creates a narrative of inevitability for Democrat candidates, increases enthusiasm among Democrats, compels Republicans to divert campaign time and money to areas in which they are ahead, and deceives the public into believing that Democrat candidates are performing better than they really are.
Does this mean the Harris campaign should be able to sue any of the pollsters who were wrong in the other direction? Hell, she would have a (still laughable and vexatious, but…) marginally more credible complaint, seeing as she actually lost the election (though she was willing to admit that, something Trump has never done).
The implications of allowing this suit to proceed are chilling. If a candidate can sue any pollster whose results they dislike, it would make accurate, independent polling nearly impossible. Campaigns could bully pollsters into only releasing favorable numbers or keeping unflattering results quiet. The public would be deprived of an important source of impartial information about races.
In a sane world, this lawsuit would be laughed out of court and widely condemned as an attack on free speech and democracy. Instead, it will likely be celebrated by the MAGA crowd as Trump “fighting back” against perceived enemies. That attitude, more than the complaint itself, shows how much trouble our political system is in.
A country that actually supported free speech wouldn’t allow such censorial SLAPP lawsuits to occur. And it should be widely seen as embarrassing that the President-elect would file such a lawsuit. Instead, it will be widely cheered by a bunch of people who pretend they support free speech while actually applauding this assault on free speech.
As we head into the election tomorrow, there has been some general talk about how many people think that Donald Trump is somehow better on things like free speech and the economy. It’s pretty clear that that is wrong. On the economy, it’s evident he has no clue what he’s talking about and his plan on both tariffs and deportations would tank the US economy massively.
Late last week, Donald Trump filed another one of his anti-free speech lawsuits, and this one is way crazier than the others. First of all, this one is directly with him as the plaintiff (some of the ones in the past have been on behalf of his campaign). But this one isn’t even about what a media property said about Donald Trump. No, he’s suing CBS claiming that the way it edited a 60 Minutes interview with Kamala Harris violates that Texas Deceptive Trade Practices Act (DTPA).
This action concerns CBS’s partisan and unlawful acts of election and voter interference through malicious, deceptive, and substantial news distortion calculated to (a) confuse, deceive, and mislead the public, and (b) attempt to tip the scales in favor of the Democratic Party as the heated 2024 Presidential Election—which President Trump is leading— approaches its conclusion, in violation of Tex. Bus. & Comm. Code § 17.46(a), which subjects “[f]alse, misleading, or deceptive acts or practices in the conduct of any trade or commerce” to suit under Tex. Bus. & Comm. Code §17.50(a)(1). See Texas Deceptive Trade Practices-Consumer Protection Act (the “DTPA”), Tex. Bus. & Comm. Code § 17.41 et seq.
This is one of the most blatant attacks on free speech rights and the First Amendment I’ve seen in a while. It’s literally saying that he can sue a news organization if he doesn’t like how they edit a story. Editorial discretion is among the very clearly protected rights of a news organization under the First Amendment.
Trump’s entire argument is that when she appeared on 60 Minutes (which also invited Trump, though he skipped out on it after initially agreeing) they edited one of her answers to make it shorter. But, um, that’s what they always do? In an edited “magazine style” TV show, as Trump well knows having done a bunch of these, they talk to you for a much longer time than they have to air, and then they air only portions of both the questions and the answers.
Indeed, it’s easy to show that if anyone has benefited from the media’s willingness to take rambling, incoherent answers and make them sound normal, it’s Donald Trump. The media does this to him nearly every single day.
Anyway, if we’re talking about word salad, here’s Donald Trump last night appearing to practically fall asleep mid-sentence talking about how “a whistleblower released the information on the 18 on the 800,000 [pause] cobs plus [longer pause]. The whistleblower said, you know, there were not 800,000 and 18,000, you add ’em upissst, and then you add 100 and think of it. 112,000 jobs.”
Trump: "A whistleblower released the information on the 18 on the 800,000 cobs plus."
In the case of CBS, it aired the shorter, more concise version of Harris’s answer on 60 Minutes, leaving out some of the explanatory rambling before getting to the details. Earlier, on Face the Nation, they played a longer clip that included some explanatory language that wasn’t a “word salad” as the complaint argues (yes, the complaint directly calls it a “word salad”) but is perhaps not particularly eloquent.
In both versions of the Interview (the “October 5 Version” and the “October 6 Version”), Whitaker asks Kamala about Israeli Prime Minister Benjamin Netanyahu. Whitaker says to Kamala: “But it seems that Prime Minister Netanyahu is not listening.”
In the October 5 Version, aired on the CBS Sunday morning news show Face the Nation, Kamala replies to Whitaker with her typical word salad: “Well, Bill, the work that we have done has resulted in several movements in that region by Israel that were very much prompted by or a result of many things, including our advocacy for what needs to happen in the region.”
In the October 6 Version, aired on CBS’s 60 Minutes, Kamala appears to reply to Whitaker with a completely different, more succinct answer: “We are not gonna [sic] stop pursuing what is necessary for the United States to be clear about where we stand on the need for this war to end.”
Incredibly, the complaint itself includes Trump ranting about all of this, kinda highlighting how he is way more prone to “word salad” than his opponent.
As President Trump stated, and as made crystal clear in the video he referenced and attached, “A giant Fake News Scam by CBS & 60 Minutes. Her REAL ANSWER WAS CRAZY, OR DUMB, so they actually REPLACED it with another answer in order to save her or, at least, make her look better. A FAKE NEWS SCAM, which is totally illegal. TAKE AWAY THE CBS LICENSE. Election Interference. She is a Moron, and the Fake News Media wants to hide that fact. An UNPRECEDENTED SCANDAL!!! The Dems got them to do this and should be forced to concede the Election? WOW!”). See President Donald J. Trump, TRUTH SOCIAL (Oct. 10, 2024)
Yes, somehow Trump’s lawyers think this makes him look good. They also seem to think that referring to Trump as “President Trump” but referring to Vice President Harris as “Kamala” makes this look like a serious case.
It is not. It is clearly an attack on basic First Amendment rights and free speech law. It is an attack on the editorial discretion of CBS, the very same editorial discretion that Trump regularly benefits from.
He is attacking the First Amendment and free speech by using bogus lawsuits to challenge those in the media who don’t portray things the way he wants them portrayed. That is a fundamental attack on free speech.
And, as Eugene Volokh explains, these issues have been covered before in court, in the context of “false” statements. This case isn’t even about false statements, just Trump not liking how an interview was edited.
That said, Trump filed this case in the Northern District of Texas, Amarillo Division, guaranteeing that Judge Matthew Kacsmaryk will hear it. Kacsmaryk is considered one of a small group of “the worst judges in America” as someone in a single judge division who is known as the go-to judge for Trumpists looking to “rubber-stamp their looniest ideas.”
There is no reason for this case to be in Texas, as Trump is a Florida resident, and the two CBS organizations he is suing are based in New York and Delaware. By any sane measure, the case would be tossed on jurisdiction alone.
I’ve also seen some people argue that RFK Jr.’s embrace by Trump is again about “free speech,” but that is similarly nonsense.
So, if you’re following RFK Jr.’s logic, it’s an obvious First Amendment violation that Facebook blocked his anti-vax statements which violated their own policies, because the White House also agreed that RFK’s anti-vax claims were dangerous. But it’s not a First Amendment violation for Donald Trump to “pull CBS’s license” for how it edited an interview?
The only “principle” here is “it’s not okay if it happens to me, but it’s totally okay if we do it when we’re in power.”
That’s not about principled free speech.
And that’s not even getting into how little either Trump or RFK Jr. understand how this works. CBS doesn’t have “a license” to pull. Affiliate stations have broadcast spectrum licenses, and the government isn’t supposed to punish them based on what they cover or how. Yes, CBS has a small number (15 across the country) of affiliates that are “owned and operated” by the company, but the vast majority (236) are owned by other entities. So even the idea of “pulling CBS’s license” makes no logical sense.
But, either way, as we head into election day, the idea that Donald Trump is a free speech supporter is literally backwards. He’s spent years suing people for their speech, and now he’s even doing it in response to editorial discretion he dislikes. Donald Trump has no conception of free speech. He only supports speech he likes, and he is eager to punish any speech he dislikes.
Newspaper presidential endorsements may not actually matter that much, but billionaire media owners blocking editorial teams from publishing their endorsements out of concern over potential retaliation from a future Donald Trump presidency should matter a lot.
If people were legitimately worried about the “weaponization of government” and the idea that companies might silence speech over threats from the White House, what has happened over the past few days should raise alarm bells. But somehow I doubt we’ll be seeing the folks who were screaming bloody murder over the nothingburger that was the Murthy lawsuit saying a word of concern about billionaire media owners stifling the speech of their editorial boards to curry favor with Donald Trump.
In 2017, the Washington Post changed its official slogan to “Democracy Dies in Darkness.”
The phrase was apparently a favorite of Bob Woodward, who was one of the main reporters who broke the Watergate story decades ago. Lots of people criticized the slogan at the time (and have continued to do so since then), but no more so than today, as Jeff Bezos apparently stepped in to block the newspaper from endorsing Kamala Harris for President.
An endorsement of Harris had been drafted by Post editorial page staffers but had yet to be published, according to two people who were briefed on the sequence of events and who spoke on the condition of anonymity because they were not authorized to speak publicly. The decision to no longer publish presidential endorsements was made by The Post’s owner, Amazon founder Jeff Bezos, according to the same two people.
This comes just days after a similar situation with the LA Times, whose billionaire owner, Patrick Soon-Shiong, similarly blocked the editorial board from publishing its planned endorsement of Harris. Soon-Shiong tried to “clarify” by claiming he had asked the team to instead publish something looking at the pros and cons of each candidate. However, as members of the editorial board noted in response, that’s what you’d expect the newsroom to do. The editorial board is literally supposed to express its opinion.
In the wake of that decision, at least three members of the LA Times editorial board have resigned. Mariel Garza quit almost immediately, and Robert Greene and Karin Klein followed a day later. As of this writing, it appears at least one person, editor-at-large Robert Kagan, has resigned from the Washington Post.
Marty Baron, who had been the Executive Editor of the Washington Post when it chose “Democracy Dies in Darkness” as a slogan, called Bezos’ decision out as “cowardice” and warned that Trump would see this as a victory of his intimidation techniques, and it would embolden him:
The thing is, for all the talk over the past decade or so about “free speech” and “the weaponization of government,” this sure looks like these two billionaires suppressing speech from their organizations over fear of how Trump will react, should he be elected.
During his last term, Donald Trump famously targeted Amazon in retaliation for coverage he didn’t like from the Washington Post. His anger at WaPo coverage caused him to ask the Postmaster General to double Amazon’s postage rates. Trump also told his Secretary of Defense James Mattis to “screw Amazon” and to kill a $10 billion cloud computing deal the Pentagon had lined up.
For all the (misleading) talk about the Biden administration putting pressure on tech companies, what Trump did there seemed like legitimate First Amendment violations. He punished Amazon for speech he didn’t like. It’s funny how all the “weaponization of the government” people never made a peep about any of that.
As for Soon-Shiong, it’s been said that he angled for a cabinet-level “health care czar” position in the last Trump administration, so perhaps he’s hoping to increase his chances this time around.
In both cases, though, this sure looks like Trump’s past retaliations and direct promises of future retaliation against all who have challenged him are having a very clear censorial impact. In the last few months Trump has been pretty explicit that, should he win, he intends to punish media properties that reported on him in ways he dislikes. These are all reasons why anyone who believes in free speech should be speaking out about the dangers of Donald Trump towards our most cherished First Amendment rights.
Especially those in the media.
Bezos and Soon-Shiong are acting like cowards. Rather than standing up and doing what’s right, they’re pre-caving, before the election has even happened. It’s weak and pathetic, and Trump will see it (accurately) to mean that he can continue to walk all over them, and continue to get the media to pull punches by threatening retaliation.
If democracy dies in darkness, it’s because Bezos and Soon-Shiong helped turn off the light they were carrying.
Let’s be honest, Christopher Rufo is the ratfucking king. While I don’t agree with him about anything, when it comes to dirty tricks, nobody does it half as good as him, he’s the best. Whenever Rufo releases a new report, the “woke” tremble, and pray he’s targeting someone else.
Rufo’s current crusade is focused on academic plagiarism. About a year ago, he started accusing prominent progressive academics – mostly Black women – of plagiarizing parts of their scholarship. His method was brilliantly simple, essentially just comparing the academic’s work to their sources and highlighting the similarities. Lo and behold, a lot of academics appear to copy banal observations and statements of fact without using quotation marks or attributing them to a source.
Anyway, Rufo gets results. His report accusing Harvard President Claudine Gay of plagiarizing parts of her 1998 dissertation, among other works, helped precipitate her resignation. And his recent report accusing Vice President Kamala Harris of plagiarizing parts of her book 2009 Smart on Crime: A Career Prosecutor’s Plan to Make Us Safer from press releases and Wikipedia, among other sources, was immediately picked up by the New York Times.
The genius of Rufo’s grift is that he’s right, at least according to his targets and their supporters. Academics universally define plagiarism as copying words or ideas without proper attribution, and they’ve gradually convinced just about everyone else to accept their definition, including journalists. What’s more, they’ve made plagiarism the academy’s only capital crime, punishable by expulsion or worse. Just ask any student hauled into the academic star chamber called an “honor council.”
The only problem is that academics and journalists alike are massive hypocrites, who enforce their own plagiarism norms against themselves almost entirely in the breach, and even then only reluctantly. When students plagiarize, there’s no excuse, but somehow when academics plagiarize there are always mitigating factors, even though you’d think academics are far better situated to avoid plagiarism than their students.
I’ll be blunt. The copying Rufo identified is absolutely plagiarism, as academics and journalists define it. Students are punished on the regular for doing exactly the same thing. And if it’s wrong for students, it has to be wrong for their professors as well. The wrongness of copying without attribution can’t depend on who’s doing the copying.
But why is plagiarism wrong?
Gay, Harris, and the other academics targeted by Rufo copied expressions notable only for their banality. If that’s plagiarism, then plagiarism is a joke. Press releases and Wikipedia were created to be copied. Nobody cares about attribution, because it just doesn’t matter. In fact, there’s no reason to attribute most of the facts and ideas used in a scholarly work, unless attribution will help the reader. And that goes for professors and students alike. No one should suffer for violating pointless plagiarism norms.
Unfortunately, just about everyone is deeply invested in the moral legitimacy of plagiarism norms, especially academics and journalists. It’s incredibly hard for people to question the moral justification of plagiarism norms, let alone whether they should be enforced. Everyone just assumes that plagiarism is wrong, so plagiarists should be punished.
Give me a break. All of the plagiarism Rufo identifies is remarkable only for its banality. For years, no one noticed the copying, because no one cared about it. And they were right not to care, because it didn’t matter. We should just extend the same grace to students, where it matters even less. A student copied, so what? If they copied well, they learned a skill academics and others use all the time. And if they copied poorly, their grade will reflect it. No need for further punishment.
Rufo’s brand of fugazi is brilliant, because academics are incapable of seeing their own bullshit, let alone seeing through it. When you come for the king, you’d better not miss. Unfortunately, Rufo’s academic opponents couldn’t hit a barn door. If they want to beat Rufo’s plagiarism charges, they have to embrace them.
The obvious solution is to tell scholars – and everyone else! – to provide quotations and citations only when they’re actually helpful to readers. If academics want to win the war with Rufo, they’ll have to abandon plagiarism norms, in order to save them.
Brian L. Frye is the Spears-Gilbert Professor of Law at the University of Kentucky.
We’re coming right up to the election here in America, so it is obviously time for all kinds of intellectual property strife surrounding political campaigns and advocacy groups. We see all kinds of ways these disputes happen, from campaigns making use of music at rallies, to political ads that use music, up to and including the use of other media in political advertisements.
Sometimes these uses are proper and covered by the fair use defense. Other times, such as Trump’s use of “Electric Avenue” in an ad, are not. But if you really want my favorite version of this kind of dispute, it certainly must come in the form of religious on religious combat being done over clips of Billy Graham juxtaposed with clips of Donald Trump being roughly as un-Christ-like as you can possibly be.
See, the Billy Graham Evangelistic Association has threatened to take legal action against the group Evangelicals for Harris, over the latter’s political ad that puts clips form a Billy Graham sermon over 30 years ago with clips of Trump being Trump.
That ad, the result of a $1 million ad campaign by Evangelicals for Harris, is now the subject of a potential lawsuit from the Billy Graham Evangelistic Association, a Charlotte, North Carolina-based nonprofit that supports the ministries of Billy Graham’s son and grandson. In late September and early October, Evangelicals for Harris, a grassroots campaign of the political action committee Evangelicals for America, said it received multiple letters from lawyers representing the association, including a “cease and desist” letter. An Oct. 2 letter, sent from outside counsel and obtained by RNS, threatened to sue Evangelicals for Harris on the basis of copyright infringement.
BGEA claims copyright on those clips and is suggesting that the use of them by Evangelicals for Harris constitutes copyright infringement.
It. Does. Not. It doesn’t for all kinds of reasons, actually, all of which coalesce into the fair use defense. I would normally articulate that defense within this very paragraph, in fact, but the legal team for Evangelicals for Harris has done such a thorough takedown of the claim that you should just go read it for yourself. There is a point by point analysis of the four tests for fair use within that statement, but it also opens with this preamble.
As a formal legal matter, EFH’s limited use of Billy Graham’s speech falls squarely within the fair use protections afforded by Section 107 of the Copyright Act and numerous judicial decisions.[3] EFH is legally entitled to use and comment on the short segments of this speech regardless of your position on the matter. The “Keep Clear” advertisement contains short clips from a speech given by Billy Graham thirty-six years ago. The advertisement uses these clips to comment on Graham’s message and contrast it with the statements and actions of former President Donald Trump. This is a paradigmatic example of fair use, which protects “criticism, comment, [and] news reporting”[4] and provides “breathing space within the confines of copyright.”[5] Importantly, the protections of fair use are “broader when the information relayed involves issues of concern to the public”[6] because the “[d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.”[7]
Section 107 provides four enumerated factors to evaluate whether the use of copyrighted material qualifies as fair use. These factors “are to be explored, and the results weighed together, in light of the purposes of copyright.”[8] Each of these factors weigh in favor of EFH and illustrate the strong protection enjoyed by material of this kind. We have set forth a thorough and detailed analysis of these issues below, and there can be no question that EFH’s videos constitute appropriate “fair use.”
And they do a good job of it, too. The work is transformative in nature, changing the clips from what was a religious sermon to one of political commentary during an election cycle. The nature of the work used includes noting that a tiny percentage of the sermon was clipped for this advertisement, while that same sermon is on offer in its entirety for free on the web both from official BGEA channels and through other providers, apparently unmolested by BGEA’s legal team. The amount of the sermon used in the clips is also, again, fractional, serving to not in any way replace the consumption of the sermon in whole. And, finally, as a result of some of the above, nothing about the use in this case diminishes the market for Billy Graham sermons.
In response to the threatened lawsuit, Evangelicals for Harris released a statement saying Franklin Graham is taking a page from Trump’s playbook by trying to silence the group through legal action.
“Franklin is scared of our ads because we do not tell people what to do or think. We merely hold Trump’s own words up to the light of Scripture, the necessity of repentance, and Biblical warnings against leaders exactly like Trump,” they wrote in a post on X.
No lies detected. I am very much the wrong person to get into a conversation about how evangelicals ought to view Donald Trump. I’ll leave that to actual evangelicals to articulate. Clearly, based on this example, they are more than capable of doing so.
But I’m also trying to picture the Nazarene incorrectly wielding something like copyright law to combat the messaging of the Pharisees and, well, somehow I just can’t seem to conjure the image, no matter how hard I try.
Well, that was quite the end to last night’s Vice Presidential debate. While the overall debate was pretty boring (though hilarious when JD Vance flipped out and whined that the moderators had promised not to fact check him), towards the very end they had what might be the dumbest possible exchange regarding free speech.
It began with a discussion on Donald Trump’s ongoing refusal to admit that he actually lost the 2020 election. Walz noted (correctly) that this would appear to be a threat to the basic tenets of democracy. Vance tried to spin this around by claiming (falsely) that Kamala Harris “censored Americans on Facebook.”
Vance followed this up by misrepresenting some of Walz’s comments on free speech, and then Walz shot back with the (oh no) “fire in a crowded theater” line.
Both of them are wrong. And it’s important to understand why. But here’s the clip if you want to see it:
If you’d prefer to read it, here’s a transcript as well. This discussion followed a discussion regarding the January 6th attack on the Capitol. Vance was asked to respond and tried to spin the attempt to overturn the election as the same as others complaining about the loss in 2016 (which, I will note, involved no storming of any Capitol, nor any Capitol police getting beaten, nor a noose, nor chants to hang the VP).
When pushed on the denial of the results of the 2020 election, Vance tried to take a page from RFK Jr. and spin it to claim that Harris (?) is trying to censor people on Facebook:
JD Vance: Yeah, well, look, Tim, first of all, it’s really rich for Democratic leaders to say that Donald Trump is a unique threat to democracy when he peacefully gave over power on January the 20th, as we have done for 250 years in this country. We are going to shake hands after this debate and after this election. And of course, I hope that we win, and I think we’re going to win. But if Tim Walz is the next vice president, he’ll have my prayers, he’ll have my best wishes, and he’ll have my help whenever he wants it. But we have to remember that for years in this country, Democrats protested the results of elections. Hillary Clinton in 2016 said that Donald Trump had the election stolen by Vladimir Putin because the Russians bought, like, $500,000 worth of Facebook ads. This has been going on for a long time. And if we want to say that we need to respect the results of the election, I’m on board. But if we want to say, as Tim Walz is saying, that this is just a problem that Republicans have had. I don’t buy that.
Norah O’Donnell: Governor.
Tim Walz: January 6th was not Facebook ads. And I think a revisionist history on this. Look, I don’t understand how we got to this point, but the issue was that happened. Donald Trump can even do it. And all of us say there’s no place for this. It has massive repercussions. This idea that there’s censorship to stop people from doing, threatening to kill someone, threatening to do something, that’s not censorship. Censorship is book banning. We’ve seen that. We’ve seen that brought up. I just think for everyone tonight, and I’m going to thank Senator Vance. I think this is the conversation they want to hear, and I think there’s a lot of agreement. But this is one that we are miles apart on. This was a threat to our democracy in a way that we had not seen. And it manifested itself because of Donald Trump’s inability to say, he is still saying he didn’t lose the election. I would just ask that. Did he lose the 2020 election?
JDV: Tim, I’m focused on the future. Did Kamala Harris censor Americans from speaking their mind in the wake of the 2020 COVID situation?
TW: That is a damning. That is a damning non answer.
JDV: It’s a damning non answer for you to not talk about censorship. Obviously, Donald Trump and I think that there were problems in 2020. We’ve talked about it. I’m happy to talk about it further. But you guys attack us for not believing in democracy. The most sacred right under the United States democracy is the First Amendment. You yourself have said there’s no First Amendment right to misinformation. Kamala Harris wants to use the power of government and big tech to silence people from speaking their minds. That is a threat to democracy that will long outlive this present political moment. I would like Democrats and Republicans to both reject censorship. Let’s persuade one another. Let’s argue about ideas, and then let’s come together afterwards.
TW: You can’t yell fire in a crowded theater. That’s the test. That’s the Supreme court test.
JDV: Tim. Fire in a crowded theater. You guys wanted to kick people off of Facebook for saying that toddlers should not wear masks.
NO: Senator, the governor does have the floor.
TW: Sorry.
JDV: That’s not fire in a crowded theater. That is criticizing the policies of the government, which is the right of every American.
So, yeah. Both of them are wrong here. The answer to Vance’s question of “did Kamala Harris censor Americans from speaking their mind” is emphatically “no, she did not.” In his follow-up, Vance changes the formulation slightly to claim that Harris “wants to… silence people from speaking their minds.”
Now, it is true that some Democrats have proposed bills of this nature. Those bills are obviously unconstitutional and went nowhere. The Senators who backed that bill (Amy Klobuchar and Ben Ray Lujan) should be ashamed of themselves for offering it up. But I’ve seen no evidence that Harris backs such a ridiculous bill.
Of course, Vance is most likely talking about the false claims in the MAGA world that the Biden administration was in cahoots with Facebook to silence vaccine denialists. Except, that’s nonsense. Even the Trump-supporting Supreme Court said there was no evidence of that:
The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation. The District Court made none. Nor did the Fifth Circuit, which approached standing at a high level of generality. The platforms, it reasoned, “have engaged in censorship of certain viewpoints on key issues,” while “the government has engaged in a yearslong pressure campaign” to ensure that the platforms suppress those viewpoints. 83 F. 4th, at 370. The platforms’ “censorship decisions”—including those affecting the plaintiffs—were thus “likely attributable at least in part to the platforms’ reluctance to risk” the consequences of refusing to “adhere to the government’s directives.” Ibid.
We reject this overly broad assertion. As already discussed, the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content-moderation policies before the Government defendants got involved. For instance, Facebook announced an expansion of its COVID–19 misinformation policies in early February 2021, before White House officials began communicating with the platform. And the platforms continued to exercise their independent judgment even after communications with the defendants began. For example, on several occasions, various platforms explained that White House officials had flagged content that did not violate company policy. Moreover, the platforms did not speak only with the defendants about content moderation; they also regularly consulted with outside experts.
This evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment.
The claim that “Kamala Harris censored” people is just not at all true. As Trump-appointee Amy Coney Barrett noted in the Murthy decision, the platforms’ moderation choices did not appear to be impacted by government requests.
But Walz’s response is also bad. While it didn’t make it into the transcript, it appears beyond just saying the “fire in a crowded theater” line, he almost claimed that “hate speech” isn’t protected under the First Amendment. He’s wrong on both of these.
Vance makes reference to some of Walz’s earlier comments, though even Eugene Volokh has suggested that, in context, Walz’s earlier comments about “misinformation and hate speech” weren’t as bad as people made them out to be, because he was narrowly talking about elections, where there can be some narrow limits.
But, still, I had hoped that someone would have pulled (non-lawyer) Tim Walz aside and explained to him the basics of the First Amendment. His comments here show that didn’t happen.
First, it’s wrong. It’s wrong for Walz to claim that that’s the “Supreme Court’s test.” Because it’s not. Yes, the line comes from a Supreme Court case, Schenck v. United States, but even when that case was considered good law (which hasn’t been the case since Tim Walz was five years old), it wasn’t “the test” laid out by the Supreme Court.
The “fire in a crowded theater” line was dicta (a non-binding aside) in a case that was used to jail Charles Schenck not for yelling fire, but for handing out anti-war pamphlets.
It’s also wrong because just about five years after Walz was born, we got the decision in Brandenburg v. Ohio, which effectively turned Schenck into bad law and gave us the “incitement to imminent lawless action” test, which is a level yelling fire in a crowded theater won’t often reach.
Now, some people still say that using this line is okay because it’s “colloquially true” or that it’s meaningful in noting that there are, in fact, some limits to free speech. Others point out that falsely yelling fire in a crowded theater might still lead to arrest and other charges under other theories of law.
But this is wrong. Using that line is bad because it is almost always used as a justification for taking away free speech rights from someone the utterer doesn’t like. The perfect example, of course, is the Schenck case itself.
Does Tim Walz think someone handing out anti-war flyers should be locked up? I’d hope not!
It’s also bad because it gives us no useful measure or limit on the concept. It stands in for the idea that “well, some speech is really bad.” But that’s not a useful tool to determine what is, and what is not, speech that is protected under the First Amendment, especially when the Supreme Court has given us actual tests, while simultaneously making it clear it has no appetite for changing its limited categories of unprotected speech.
As the Supreme Court ruled in 2009, it’s not in the business of declaring new categories of speech unprotected:
Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.
The problem with the “fire in a crowded theater” line is that it is almost universally used to suggest some new category of speech that should not be considered protected by the First Amendment. The Supreme Court has made it pretty clear that’s not how it works.
If you want to argue that the line is merely referencing the well-documented categories of unprotected speech, it’s still bad, because we have a clearly established list of unprotected speech that they could cite just as easily, and it allows us to determine if the speech in question is, in fact, unprotected.
Either way, neither of the candidates last night understood the First Amendment issues. They were both so out of their element on this subject that not only did they both get it wrong, but both of them then missed the opportunity to respond to the other noting why they were wrong about the First Amendment.
You could perhaps argue that Walz, who is not a lawyer, shouldn’t know the specifics. But if he’s aiming to be next in line to the Presidency, he certainly should. As for Vance, he is a lawyer. But, he went to Yale Law, and, well, they’re not always so great on the First Amendment.
In the bizarro world of MAGA politics, up is down, black is white, and apparently, fact-checking is now a form of election interference.
It is no secret that people across the political spectrum have a very warped view of what free speech or the First Amendment means. But I am particularly perplexed by the view of many lately (and this seems to run across the political spectrum, tragically) that fact checking is an attack on free speech and should be punished. It feels ridiculous to even bring this up, but fact checking is not just protected speech, it is the proverbial “more speech” that pretend defenders of the First Amendment always claim is the only possible answer to speech you disagree with.
Anyway, last week you might have heard there was a Presidential debate between Kamala Harris and Donald Trump held on ABC. The CNN debate earlier this year between Trump and Biden included a vow from the moderators that they would do no fact-checking, which resulted in those moderators being roundly criticized.
On the other hand, ABC chose a few narrow points, when the lies were incredibly egregious, to provide simple fact-checks to blatantly false claims. I believe they responded just three times to make factual claims, even though the former President told an astounding number of blatant outright lies (not just exaggerations, but fully invented, made up bullshit).
This has set Republicans off on a ridiculous crusade, claiming that ABC was actively working with the Harris campaign to support it, which is not how any of this actually works. Then, Trump himself claimed that the debate was “rigged” (of course) and told Fox & Friends that (1) you “have to be licensed to” be a news organization and that (2) “they ought to take away their license for the way they did that” (i.e., fact-checked the debate).
Others in Trump’s circles claimed that the fact-checking was a form of “in-kind contribution” to the Harris campaign worth millions of dollars.
All of this is nonsense. First off, one of the complaints was that the moderators fact-checked Trump but didn’t fact-check Harris. There are a few responses to that, including that if you removed the three times they fact-checked Trump and compared things then, they still chose not to fact-check him on many, many more false claims and egregious lies. The second is that the fact-checking complaints around Harris are ones of leaving out context or having slight exaggerations. With Trump it was literal made-up nonsense, such as the false, bigoted claims about eating cats and dogs, or the idea that Democrats support killing babies after birth. Just out and out fearmongering bullshit.
But, again, fact-checking is free speech. The party that claims to be such a big believer in free speech should also support that.
However, even dumber is Trump’s false claim that ABC has to be licensed. That’s not how this works. It’s yet another false statement coming from the mind of a man who seems to only work in false statements. Individual affiliates can require licenses to obtain spectrum, but ABC itself is not something that needs licensing. You don’t need to be licensed to be a news organization.
Just ask Fox News.
Of course, we’ve been through this before with Trump, who has sued many news organizations he’s disliked (without much success) and has made this same bogus threat before. In 2017, he said that NBC should lose its (non-existent) license for reporting on former Secretary of State Rex Tillerson calling Trump a “moron.” A year later, he threatened to pull NBC’s (still non-existent) license over its reporting on Harvey Weinstein.
Earlier this year, he said both NBC and CNN should have their “licenses or whatever” taken away for not giving him free airtime by showing his victory speech following the Iowa caucuses.
All of this is ridiculous. It’s an attempt at intimidation. It’s an attempt to threaten and cajole news organizations to not speak, to not use their First Amendment rights, and to not fact check when the former President spews absolute fucking nonsense.
But, because MAGA world is making a big deal of this, even the FCC Chair, Jessica Rosenworcel, had to put out a statement on the very basics of the First Amendment:
“The FCC does not revoke licenses for broadcast stations simply because a political candidate disagrees with or dislikes content or coverage.”
It is true that there are some very, very, very limited and narrow circumstances under which the FCC can pull a local affiliate’s spectrum license (not the larger network). However, not liking how fact-checking happens is not even in the same zip code as those.
Indeed, if MAGA world is getting into the business of pulling affiliate licenses, they might not like where things end up. There has been an ongoing effort to pull the license from a Fox affiliate in Philadelphia, based specifically on Fox News admitting that it broadcast false information about the 2020 election.
I don’t support such efforts, which likely violate the First Amendment. Even if it’s a closer call when you’re dealing with a network that has effectively admitted to deliberately spreading false information the company knew was false. But here, the call from Trump to remove the license is simply because of a fact check. It was because they told the truth, not because they lied.
When that effort to remove the Fox affiliate’s license came about, MAGA world was furious. Senator Ted Cruz went on a rant about how “the job of policing so-called ‘misinformation’ belongs to the American people—not the federal government” and complained about how “the left” “want the FCC to be a truth commission & censor political discourse—a prospect that is unconstitutional.”
Hey Ted, care to comment on the claims from last week?
I see no similar statement from him about Trump and the MAGA world now demanding the same thing (for much more ridiculous reasons). I combed through his ExTwitter feed and surprisingly (well, not really) he seems to have no issue with his side calling to pull licenses. How typically hypocritical.
Tragically, this has become the modern Republican Party. They are total hypocrites on free speech. When they want to protect their own speech, they wrap themselves up in the cape of the First Amendment, but when someone who disagrees with them speaks up to contradict them with facts, they’re happy to push for censorship and punishment over speech.
Last month, we discussed the internet’s reaction to Donald Trump, well, Donald Trumping all over social media. He shared several images on social media, some of which were real, some of which were parody, and some of which were AI generated images, all of which appeared to suggest that Taylor Swift had endorsed him. In fact, his own contribution to that social media post were two whole words: “I accept.”
But there was nothing to accept, of course. And the internet’s reaction in far too many places was all in advocating legal action by Swift’s team, including utilizing new laws untested in the courtroom in order to sue Trump over this implied false endorsement. I suggested that would be a massive waste of time and money. Instead, if the actions Trump took irritated Swift, the sweetest revenge would be a highly publicized endorsement of Harris (Swift endorsed Biden last cycle) or, in lieu of that, at least a public rebuke of the social media posts. From that previous post:
But the larger point here is that all Swift really has to do here is respond, if she chooses, with her own political endorsement or thoughts. It’s not as though she didn’t do so in the last election cycle. If she’s annoyed at what Trump did and wants to punish him, she can solve that with more speech: her own. Hell, there aren’t a ton of people out there who can command an audience that rivals Donald Trump’s… but she almost certainly can!
Just point out that what he shared was fake. Mention, if she wishes, that she voted against him last time. If she likes, she might want to endorse a different candidate.
Now, I’m quite certain Her Swiftness didn’t actually read my post and take it as the advice it was designed to be, but she certainly has acted as though she had. Less than a month after Trump’s AI nonsense, and immediately after the debate between Trump and Harris, Taylor Swift took to social media herself both to address what Trump did and to endorse Harris.
Recently I was made aware that AI of ‘me’ falsely endorsing Donald Trump’s presidential run was posted to his site. It really conjured up my fears around AI, and the dangers of spreading misinformation. It brought me to the conclusion that I need to be very transparent about my actual plans for this election as a voter. The simplest way to combat misinformation is with the truth.
I will be casting my vote for Kamala Harris and Tim Walz in the 2024 Presidential Election. I’m voting for @kamalaharris because she fights for the rights and causes I believe need a warrior to champion them. I think she is a steady-handed, gifted leader and I believe we can accomplish so much more in this country if we are led by calm and not chaos. I was so heartened and impressed by her selection of running mate @timwalz, who has been standing up for LGBTQ+ rights, IVF, and a woman’s right to her own body for decades.
I’ve done my research, and I’ve made my choice. Your research is all yours to do, and the choice is yours to make. I also want to say, especially to first time voters: Remember that in order to vote, you have to be registered! I also find it’s much easier to vote early. I’ll link where to register and find early voting dates and info in my story.
With love and hope,
Taylor Swift Childless Cat Lady
Now, the focus of this post is not that Trump is the Big Bad, or to suggest that anyone view Swift’s endorsement as a gospel they themselves must follow. Instead, the point is the one we made originally: no lawsuit was needed for Swift to address this. As we said: “she can solve [this] with more speech: her own.” That lines up fairly well with Swift’s statement: “The simplest way to combat misinformation is with the truth.”
The real question is whether this endorsement ever would have happened without Trump’s online antics. We can’t know for certain, but it sure sounds from Swift like they may have lit the spark.
