The Trump administration’s contempt for the news media isn’t much different than that of Russian strongman Vladimir Putin’s, except that Trump has never ordered any critical reporters snuffed —  at least not so far.

On May 9, veteran reporter Dan Heyman of the Public News Service was arrested in the West Virginia Capitol building after he repeatedly asked Health and Human Services Secretary Tom Price (who refused to respond) whether domestic violence would be covered as a pre-existing condition under the Republican health care plan to replace Obamacare. Heyman was charged with willful disruption of government processes.

During his campaign, Trump, called prominent news organizations financial failures and journalistic disgraces, promising to “to open up those libel laws, so when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, … writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.” During his presidency, he has continued to pour scorn on them, labeling any articles unfavorable to him as “fake news.”

As recently as April 30, White House chief of staff Reince Priebus ominously remarked in a television interview that changing the defamation laws was “something we’ve looked at.”

The First Amendment of the Bill or Rights provides that “Congress shall make no law … abridging the freedom of speech, or of the press; …” In a country that prides itself on the liberties it affords its citizens, you’d think Trump would at least pay lip service to such core rights as free speech and press. He’s certainly taken full advantage of both almost every time he’s opened his mouth.

Instead, Trump has started down the discredited path taken by President John Adams to muzzle public criticism. In 1798, Adams, our second President, a prominent leader in the American Revolution, and a framer of the Constitution, signed the Sedition Act, a law criminalizing false statements critical of the federal government.

Advertisement

Adams, although a highly intelligent, courageous and admirable figure, was very thin-skinned (perhaps the only trait he shared with Trump). In the hyper-partisan atmosphere that permeated politics during Adams’ term in office (1797-1801), he and members of his Federalist Party, which advocated a strong central government, sought to suppress public criticism of the administration and intimidate the opposition.

A number of newspaper publishers, politicians and individuals were tried, convicted, jailed and fined under the Sedition Act for statements that, though intemperate, were hardly treasonous. Benjamin Franklin Bache, for instance, editor of an opposition newspaper Philadelphia Aurora, was arrested under the Sedition Act for accusing the “blind, bald, crippled, toothless, querulous Adams” of nepotism and monarchical ambition.

The Sedition Act was a central issue in the 1800 presidential election, and the winner of that election, Thomas Jefferson, pardoned those who had been convicted and sentenced under the Act and remitted their fines.

Though laws limiting free speech were employed during the Civil War and World War I, the Sedition Act stands out as particularly egregious example of an attack on the First Amendment, since it is was used in peacetime rather than as a wartime emergency measure.

Trump’s threats to curb free speech have been aimed less at arrest and prosecution (the Hayden incident notwithstanding) than at civil liability for money damages under defamation law. Trump has spent his business career exploiting litigation to intimidate opponents, so he well understands the chilling effect the costs of a lawsuit can have on those who try to stand up to him.

Defamation is a theory of tort law which compensates plaintiffs for injury to their reputation arising out of false statements by defendants which either cause pecuniary harm or are presumed to be harmful (such as an untrue statement that the plaintiff has committed a crime or is incompetent or dishonest in his business, trade or profession).

Advertisement

The standard of proof is much higher for defamation suits against a news organization or other critic of a public official’s conduct than for suits involving private speech. For private speech, negligence or carelessness is the standard. Under the 1964 case of New York Times v. Sullivan, the Supreme Court held that a public official has to prove “malice,” that is, actual knowledge of falsity or reckless disregard for the truth, in order to prevail in a defamation case. In reaching its decision, the court pointedly quoted James Madison, one of the Constitution’s drafters, that “the censorial power is in the people over the Government, and not in the Government over the people.”

Trump may, of course, try to pack the U.S. Supreme Court with sympathetic conservative jurists, expecting they will back his desire to suppress his critics, but don’t count on the tactic being successful. In recent years, even the most conservative Supreme Court justices have been very protective of First Amendment rights.

Besides, if Trump succeeds in lowering the bar for plaintiffs in defamation lawsuits, he may become a prime target for such suits himself, since he frequently tries to tarnish the reputation of critics and rivals with outlandish public statements about them that are either demonstrably untrue or totally unsupported by factual evidence.

So be careful what you wish for, Donald!

Elliott Epstein is a trial lawyer with Andrucki & King in Lewiston. His Rearview Mirror column, which has appeared in the Sun Journal for 10 years, analyzes current events in an historical context. He is also the author of “Lucifer’s Child,” a book about the notorious 1984 child murder of Angela Palmer.


Only subscribers are eligible to post comments. Please subscribe or login to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.