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The same president who signed an executive order to curb campus censorship is suing The New York Times for publishing an opinion piece that stoked his fury.
News that President Donald Trump’s reelection campaign filed an ill-fated libel lawsuit against The Times underscores Trump’s complicated and often contradictory relationship with the First Amendment. Advisers should guide him toward more consistent free speech advocacy.
Trump’s campaign says a March 2019 essay by Max Frankel, “The Real Trump-Russia Quid Pro Quo,” is factually false and damages the president’s reputation. Legal scholars — even Trump-friendly voices like Fox News commentator Judge Andrew Napolitano, a former New Jersey trial judge — aren’t buying it.
Not only does the libel claim collapse under scrutiny, Napolitano noted, but the Fox senior judicial analyst pointed out that Trump’s campaign lacks standing to sue.
“The plaintiff is the campaign, and under libel law here in New York, where they filed the complaint, a group can’t be the plaintiff. Only an individual who’s actually been harmed by the alleged defamation can be the plaintiff,” Napolitano said on “Fox & Friends,” a program on which Trump has been a frequent call-in guest.
For its part, The Times says it will vigorously defend its First Amendment rights. The newspaper will prevail. The lawsuit isn’t worth the paper it’s printed on.
The president should know better after a long record of legal losses. University of Southern California media law specialist Susan Seager branded him a “libel bully” in 2016, citing cases like the suit he filed against HBO pundit Bill Maher for joking that Trump should release his birth certificate to prove he isn’t the son of an orangutan.
Trump’s libel suits are unwinnable, but winning isn’t the objective. These are open-and-shut SLAPP cases — strategic lawsuits against public participation. They’re intended to chill free speech by intimidating critics into silence, lest they risk the expense of protracted litigation.
Contrast that censorious stance with the president’s encouraging defense of American college students who face punishments and administrative kangaroo courts for voicing opinions that other students find offensive.
“If a college or university does not allow you to speak, we will not give them money,” Trump said in a White House signing ceremony last March, the same month Frankel’s opinion essay was published. “It’s that simple.”
The Foundation for Individual Rights in Education, a nonpartisan group defending free speech, due process and academic freedom on campus, found that nearly a quarter of the 471 schools it surveyed maintain at least one written policy that “both clearly and substantially restricts freedom of speech.”
FIRE endorsed the spirit of Trump’s executive order, though it noted that vague wording and a lack of specificity on the compliance process left many questions unanswered.
Some First Amendment lawyers have expressed skepticism, but anything that deters enforced political correctness is a clear win for freedom of speech. Censorship targets who don’t receive pro-bono legal representation often can’t afford to assert their constitutional rights, even though the courts would ultimately side with them. Try bankrolling a federal lawsuit on student loans.
Channeling conservative ire against perceived media bias, Trump has railed against “fake news” and called reporters he considers unfair or dishonest “the enemies of the people.” While that rhetoric disturbs press freedom advocates, he enjoys the same free speech rights as the commentators and critics who skewer him.
Trump has infamously called for stricter libel laws, but he’s out of step with most of his own judicial appointees including Supreme Court Justice Neil Gorsuch, a First Amendment stalwart. Chief Justice John Roberts’ court is unlikely to limit free speech and press freedom rights.
It’s unclear why Trump would want to dent his own shield. Redefining libel might mean monikers for political rivals like “Crooked Hillary” could be actionable. Indeed, the outspoken commander in chief is arguably one of the biggest beneficiaries of the United States’ sweeping protections for free speech. Doesn’t his base love him because he’s bold, unfiltered and unapologetic about being politically incorrect?
Trump should develop a thicker skin, learn to weather the kind of strident criticism he revels in dishing out and build on his concern over campus censorship with more First Amendment support. Why not campaign as a fearless defender of free speech?
Corey Friedman is executive editor of Restoration NewsMedia. In this weekly column for Creators Syndicate, he explores solutions to political conflicts from an independent perspective. Follow him on Twitter @coreywrites. To read features by other Creators writers and cartoonists, visit www.creators.com.