A First reason to oppose Trump

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The Daily Caller reports:

Republican presidential front-runner Donald Trump doubled down on his promise to open up the country’s libel laws and warned that reporters they will “regret … all of the bad stories they write.”

During a campaign speech in Huntsville, Alabama Sunday, Trump talked about the “heat” he received from the media since saying on Friday he would push to make it easier to sue journalists over “purposely negative and horrible and false articles” about him.

Trump told the crowd in Huntsville, “I said to the press they have to report accurately and if they don’t report accurately, we — all of us — should have the right to sue them, OK? You know what? This has nothing to do with freedom of the press, which I believe in totally,” he said.

“But when they don’t report accurately, we should have the right to sue them to get them to report accurately and also damages, because right now, we have libel laws that don’t mean a thing. I will tell you it’s going to be tougher because they will be tougher on me now. They are so dishonest,” he explained. …

He added, “But here’s the story, when they write inaccurately, we have to have the right to hold them to what they write and if it’s inaccurate we have the right to get damages. Right now we get nothing. They are going to regret, all of them, all of the bad stories they write.”

Trump defended his stance to Chris Wallace on Fox News Sunday earlier in the day.

“In England, I can tell you it’s very much different and very much easier,” the New York businessman said.

“I think it’s very unfair that The New York Times can write a story that it’s very much false, and they basically told me is false,” he said. “All I want is fairness.”

Trump has threatened and slapped libel and defamation lawsuits on the press and private civilians in the past. He lost a libel suit in 2011 against Timothy O’Brien, author of the 2009 book TrumpNation: The Art of Being The Donald. Trump accused O’Brien of committing “actual malice” by referencing three anonymous sources who said Trump’s net worth is estimated between $150 million and $250 million.

According to The Hollywood Reporter, Trump’s lawyer said it was “proven conclusively” that Trump’s net worth to exceeds $7 billion.

Trump hit Sheena Monin, a Miss USA pageant contestant from Pennsylvania, with a $5 million defamation lawsuit in 2012 after she questioned the integrity of the pageant’s results in a Facebook post.

That makes Trump the right-wing (assuming that’s what he really is) equivalent to the left-wingers screaming to ban “hate speech” — that is, speech they disapprove of for identity-group reasons.

That makes Newspaper Association of America president David Chavern observe:

The first thing to understand is that under the landmark Supreme Court case of New York Times vs. Sullivan, it was determined that news organizations could be found liable when they deliberately publish false information. The specific standard is “actual malice.” So if Mr. Trump wants to address media organizations that “write purposely negative and horrible, false articles” then the law is already established as to his rights to do that.

But we all know that Mr. Trump isn’t interested in legalities in this case. He is clearly just trying to intimidate news organizations and bully them in providing more positive coverage of him and his candidacy for President. He should pick a different target. Newspapers have dealt with more intimidating figures than Mr. Trump.

Newspapers, actually, have a long, long history of responsibly speaking truth in the face of great power. One could think of Watergate or the Oscar-nominated movie “Spotlight” for some better-known examples. Throughout history, those in power have complained about newspaper reporting when it didn’t meet their agenda and the number of instances where the reporting has been found to be on target has vastly out-weighed any circumstances where it wasn’t. The fact is that our society relies upon the newspaper industry to be a consistent, challenging voice to the wealthy and powerful — and newspapers have a long history of carrying out that mandate with care and a deep sense of responsibility.

Newspapers have successfully stood-up to sitting Presidents, vast religious organizations, governors, mayors and immensely powerful corporations, among many others. If Mr. Trump wants to try to bully news organizations into providing reporting that he likes, then he will have to do a whole lot better than making weak, misguided promises about changes to a law that aren’t needed in the first place.

The Washington Post’s Erik Wemple adds:

An attack on media law is a logical extension of Trump’s rhetoric, not to mention a threat to American democracy. After all, he has displayed a highly undemocratic annoyance with the idea that the media is independent. For months he has been attempting to get the cameras at his rallies to properly pan around the thronged arenas, the better to capture his out-of-control popularity, even when the camera operators’ job is to stay on him. He has ridiculed reporter after reporter for reporting the facts of Trump’s march through the GOP primaries. Whenever he has been busted out by investigative journalism, he has attacked the institutions that have compiled it.

Though Trump in his remarks issued no specifics — he never does — about the shortcomings of existing policy or the exact changes he’d make, he appears to be upset with the degree to which media outlets are protected by longstanding First Amendment law. And protected they are, especially when reporting on people like Donald Trump, the sort of person that libel law sees as “public figures.” Media types can go after public figures with a great deal of aggressiveness because the law of the land sees those in the public eye as inviting scrutiny and thrusting themselves into the glare of accountability.

Wind the clock back to March 1964, when the U.S. Supreme Court decided the landmark case New York Times v. Sullivan. At issue was not an article but rather an advertisement in a 1960 edition of the New York Times that an Alabama elected official, L.B. Sullivan, found particularly injurious. The record concluded that some of the criticisms in the advertisement were inaccurate.

No matter, wrote William J. Brennan for the majority, in an opinion that appeared to foresee Trump himself:

Those who won our independence believed … that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

From this decision has arisen something of a two-tiered libel arrangement throughout the land. There’s one standard for Joe Schmo, who has to prove only that a media outlet acted with negligence in order to secure a favorable judgment. For public figures — they have to prove a standard known as “actual malice,” that the offending statement “was made with knowledge of its falsity or with reckless disregard of whether it was true or false.

What’s so comical and pathetic about Trump is how, as per usual, he speaks so loudly without knowing anything about the topic. Roll back the tape on one part of his riff: “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”

Trump wouldn’t need to “open up our libel laws” in order to accomplish this end. As currently laid out, our libel laws enable him to do just that. In fact, the “actual malice” standard discussed above applies almost precisely to those instances when news outlets write “purposely negative and horrible and false articles.”

Read carefully, in other words, Trump’s words delivered a thundering endorsement of the status quo in libel jurisprudence. Surely he didn’t mean as much — if elected he would doubtless move ahead with this plan to make it harder for news outlets to call him out. Though for a guy who spends much of his day writing over-the-top slams of other public officials, maybe Trump should give thanks for the First Amendment.

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