4 ms·

Trump on Free Speech and Freedom of the Press

4 points by DiabloD3 10y ago

wahern 10y ago
Trump can't do anything to change libel law, at least not to his benefit as president. First of all, libel is a creature of state law. There's no federal libel claim AFAIK, and arguably defamation is one of the few areas that Congress would find difficult to legislate without running afoul of the limits of federal powers. Second, well-established constitutional law sets an extremely high bar for a politician or other public figure to prove defamation--they have to show malicious intent. This bar is so high that any lawyer could get it thrown out of court with minimal cost and time. While Trump the private citizen had some success with nuisance suits, he'd have little success as president. Indeed, I wouldn't be surprised if state bars investigated any lawyer who tried to file a series of such nuisance claims. And if somebody was maliciously defaming Trump, we shouldn't have many qualms about them being held accountable. They'd only be committing the same sins Trump has and will continue to commit; sins which disrupt our capability to carry out reasonable political discourse. If Trump managed to win such a case, he'd only be encouraging the floodgates to suits against himself and people like him. Given the reality of his ascendency, I think that's something I could live with.
- DiabloD3 10y ago
  Still, the EFF is spooked about Trump becoming President; and I consider them knowledgeable and logical lawyers for the most part.
  - wahern 10y ago
    FWIW, I contribute to the EFF and support its mission. But the EFF is not in the business of dispensing legal advice to the public. They're in the business of lobbying, and they're not above hyperbole. Neither, for that matter, are celebrity lawyers from Stanford, Harvard, etc. That's a lesson I learned the hard way when following Lawrence Lessig's SCOTUS challenge to copyright term extension. Lawrence Lessig, Eben Moglen, and the whole cast of lawyer-philosophers in the open source community made it sound like a slam dunk. But they were rebuked by every court. It was only in retrospect that I understood that their public discourse was part of a strategic, if not tactical, legal and intellectual offensive. They are trained as lawyers, afterall. Lawyers make it habit to argue their points with commitment, and they're careful not to offer counter-arguments, or to otherwise qualify their message, except as required in their briefings to the court. I have no doubt they sincerely believed that the law _should_ be as they claimed; but undoubtedly they did or would have heavily qualified their claims to their actual clients. A charitable interpretation of the EFF's point about Trump's history regarding defamation suits is that the history characterizes Trump's tolerance of criticism and his commitment to free speech more generally; and that it's suggestive of his policy preferences regarding other free speech issues that he can actually substantively influence. Thus the implication that his nuisance-suit history is consistent with his dismissive and antagonistic attitude toward the White House press corps. The less charitable viewpoint is that the EFF is fear mongering. People unfamiliar with the law easily read that article as implying Trump could change libel law, or that he could abuse it as easily as he has previously. I think both interpretations are likely. The article is carefully worded to be consonant with the law as widely understood, while allowing lay readers to draw conclusions which, helpfully, add to their sense of urgency and anxiety about Trump's administration and their willingness to support the EFF.
    - DiabloD3 10y ago
      I interpreted it differently. The reason the Lessig et al. lost is because too much money is involved in keeping the status quo. I agree that they try to paint their story their way, but I also agree with their interpretation of what's going on. Any change of any law that moves the US to a less free state needs to be blocked in every way. If this means even a 1% chance of him changing libel law, or a 1% chance of him trying to destroy net neutrality, or a 1% chance of anything the EFF has claimed he might try to do, that is 1% too much.

4 points by DiabloD3 10y ago

Trump can't do anything to change libel law, at least not to his benefit as president. First of all, libel is a creature of state law. There's no federal libel claim AFAIK, and arguably defamation is one of the few areas that Congress would find difficult to legislate without running afoul of the limits of federal powers. Second, well-established constitutional law sets an extremely high bar for a politician or other public figure to prove defamation--they have to show malicious intent. This bar is so high that any lawyer could get it thrown out of court with minimal cost and time. While Trump the private citizen had some success with nuisance suits, he'd have little success as president. Indeed, I wouldn't be surprised if state bars investigated any lawyer who tried to file a series of such nuisance claims. And if somebody was maliciously defaming Trump, we shouldn't have many qualms about them being held accountable. They'd only be committing the same sins Trump has and will continue to commit; sins which disrupt our capability to carry out reasonable political discourse. If Trump managed to win such a case, he'd only be encouraging the floodgates to suits against himself and people like him. Given the reality of his ascendency, I think that's something I could live with.

DiabloD3 10y ago
Still, the EFF is spooked about Trump becoming President; and I consider them knowledgeable and logical lawyers for the most part.
- wahern 10y ago
  FWIW, I contribute to the EFF and support its mission. But the EFF is not in the business of dispensing legal advice to the public. They're in the business of lobbying, and they're not above hyperbole. Neither, for that matter, are celebrity lawyers from Stanford, Harvard, etc. That's a lesson I learned the hard way when following Lawrence Lessig's SCOTUS challenge to copyright term extension. Lawrence Lessig, Eben Moglen, and the whole cast of lawyer-philosophers in the open source community made it sound like a slam dunk. But they were rebuked by every court. It was only in retrospect that I understood that their public discourse was part of a strategic, if not tactical, legal and intellectual offensive. They are trained as lawyers, afterall. Lawyers make it habit to argue their points with commitment, and they're careful not to offer counter-arguments, or to otherwise qualify their message, except as required in their briefings to the court. I have no doubt they sincerely believed that the law _should_ be as they claimed; but undoubtedly they did or would have heavily qualified their claims to their actual clients. A charitable interpretation of the EFF's point about Trump's history regarding defamation suits is that the history characterizes Trump's tolerance of criticism and his commitment to free speech more generally; and that it's suggestive of his policy preferences regarding other free speech issues that he can actually substantively influence. Thus the implication that his nuisance-suit history is consistent with his dismissive and antagonistic attitude toward the White House press corps. The less charitable viewpoint is that the EFF is fear mongering. People unfamiliar with the law easily read that article as implying Trump could change libel law, or that he could abuse it as easily as he has previously. I think both interpretations are likely. The article is carefully worded to be consonant with the law as widely understood, while allowing lay readers to draw conclusions which, helpfully, add to their sense of urgency and anxiety about Trump's administration and their willingness to support the EFF.
  - DiabloD3 10y ago
    I interpreted it differently. The reason the Lessig et al. lost is because too much money is involved in keeping the status quo. I agree that they try to paint their story their way, but I also agree with their interpretation of what's going on. Any change of any law that moves the US to a less free state needs to be blocked in every way. If this means even a 1% chance of him changing libel law, or a 1% chance of him trying to destroy net neutrality, or a 1% chance of anything the EFF has claimed he might try to do, that is 1% too much.