Election 2016

Donald Trump Doesn't Understand Freedom of the Press. Neither Does Hillary Clinton.

Both Trump and Clinton want new laws to make it harder to criticize them.

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Sue everybody
CRISTOBAL HERRERA/EPA/Newscom

This past Sunday afternoon, Republican presidential nominee Donald Trump went on a brief Twitter rant that was naturally short on specifics, but which nonetheless touched a nerve across the political spectrum because it appeared to display a jaw-dropping misunderstanding of the concept of "freedom of the press."

First, Trump complained about The New York Times, which he claims has been falsely reporting that he's been telling advisers he will "change." Then, he groused that the media doesn't "properly" cover his rallies, particularly the "size or enthusiasm," because if they were, Trump believes he would be "beating Hillary [Clinton] by 20%."

The size-obsessed Trump must not be watching the same lamestream media I am, because nearly every Trump rally for more than the past year has been covered exhaustively by both print and television media, giving the billionaire boss of frequently bankrupt businesses over $2 billion in free airtime.

After complaining about "fighting Crooked Hillary" and "the dishonest and corrupt media and her government protection process" (I don't know what that means, either), Trump dropped this doozy:

Taken with the most generous interpretation, Trump is right, "newspapers and others" can't say things that they know to be demonstrably false for the purposes of impugning someone's reputation. There are laws against libel, slander, and defamation already on the books, and a man of Trump's means would have no difficulty taking a person or organization to court if he saw fit to do so. But Trump has already gone on record in a meeting with The Washington Post editorial board earlier this year where — in his patented Trumpian non-specific brain-fart word-salad style of extemporaneous speech — he mused about "loosening up" libel laws if a paper "writes badly" about him.

That's the giveaway. Trump is less interested in prosecuting blatant falsehoods as much as he is hostile to the concept of the media "and others" saying and writing things about him that he doesn't like or agree with. In that sense, he's not too dissimilar from his electoral rival, Democratic nominee Hillary Clinton.

This past February Clinton gave a speech where she declared "you're not going to find anybody more committed to aggressive campaign finance reform than me," but — much like Trump's clumsy poker tell — Clinton tipped her hand by adding that Citizens United "was actually a case about a right-wing attack on me and my campaign."

Put another way, Citizens United was a Supreme Court case about a private organization financing a documentary critical of a leading presidential candidate during an election season, kind of like Fahrenheit 9/11, Michael Moore's slickly-produced and Disney-financed documentary timed to coincide with the 2004 presidential election to help convince the public to vote against George W. Bush.

Last month Clinton promised to push for a constitutional amendment to overturn Citizens United, which for 6 years has served as the Democrats' catchall "money corrupts everything" boogeyman. But when Clinton spoke about the need to prevent films critical of her from being produced, Slate's Mark Joseph Stern wrote (in a piece otherwise highly critical of Citizens United) that the former Secretary of State's line about an "attack on me and my campaign" was "one of the worst Clinton has ever uttered":

She essentially acknowledged that she hated the ruling because it allowed a corporation to disseminate harshly disparaging speech against her. But protection for harshly disparaging political speech is the bedrock of the First Amendment. The real problem with Citizens United was not the speech itself, but the way it was funded. By admitting that her real problem with the ruling was the content of the speech it allowed, Clinton confirmed the fears of the Citizens United majority: that a limit on corporate electioneering "uses censorship to control thought." In attempting to criticize the decision, she inadvertently proved why it might actually be right.

As my colleagues Matt Welch and Damon Root have noted, both Trump and Clinton have absolutely abominable records when it comes to free expression. And while it's always a hoot when the left and right gang up on Trump's unhinged Twitter rants about issues of constitutional import, it's worth remembering Clinton does not provide a free press-respecting alternative.

When it comes down to it, both Trump and Clinton have made it very clear they will use the power of the presidency to make it harder for an adversarial press to hold them accountable.

NEXT: Let's Use Trump's Own Words to Figure Out What His Gay-Rights and Gender-Equality Test for Immigrants Might Look Like

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  1. Trump: wants to change the burden of proof some plaintiffs have to meet to win a defamation suit.

    Clinton: wants to strip all corporations (presumably, partnerships, associations, etc. as well) of all First Amendment rights.

    Gee. Tough call.

      1. I’m starting to favor Clinton. I think the odds are good she’ll die sooner rather than later. Her chump VP isn’t likely to get much done with gridlock.

        1. Fair analysis; but will she die before doing her (additional) damage?

          1. It all depends on how quickly the stress of being president finishes her off. I was just noticing how in even complimentary photos, she doesn’t look well.

        2. That’s the only reason I can think of to vote Hillary.

          But, the advanced state of medical science could keep her alive and on the job longer than we think. Fidel Castro isn’t dead yet, for cryin’ out loud.

          1. Then we get Bill pulling the strings, so…better?

          2. Did someone say “head transplant”?!

            /Bubba

        3. It seems like some of the newer Dem talking points subtly imply that she isn’t going to be running the show, although I don’t know if that’s because they expect her to just be incapacitated instead of dead.

          1. Does that mean Huma would run the place?

        4. Her chump VP isn’t likely to get much done with gridlock.

          Not so sure. A rotting corpse that the press is willing to lionize can make a pretty good political prop.

        5. Hell, there’s a non-negligible chance she’ll keel over before the election.

      2. Actually, I’m not entirely sure I disagree with Trump. The extraordinary burden a public person must carry to win a defamation suit is entirely judge-created, and may be a violation of due process. In any event, its not as simple and clear-cut as “only natural persons have any First Amendment rights”.

        In the bigger picture, though, NOTA is the correct answer.

        1. Would you care to explain what this “judge-created” burden is? It is my understanding that proving defamation requires showing that the defendant’s representation of facts was both false and harmful to the plaintiff. I don’t see a problem with that and would in fact much prefer it stay that way. Is there something I’m missing?

          1. If you’re a public figure, you have to prove that the writer had “actual malice.”

            1. Sorry, forgot the link to the case. NY Times v. Sullivan

            2. On its face, I don’t necessarily see a problem with that. As long as “public official” means “official of a governmental agency” and “actual malice” means what it says it means. I have a feeling that the real problem is instead that a) the NYT does seem to have had “actual malice” in that case even though the Court claimed otherwise and b) the class of “public official” has been subtly extended to include anyone with a certain level of public recognition.

              1. From what I understand, the main problem with is that the plaintiff has to prove that that the libeler/slanderer knew they were lying. Which is almost impossible to prove. I can see the argument for lowering the standard of proof slightly.

              2. Freedom of the press is in the same sentence of the Constitution as freedom of speech. It should be given no different treatment.
                The press should be held to the same standard as any private citizen and should not be given this extra freedom, of the plaintiff having to prove knowledge of the falsity of a statement, prove actual malice or having the ability to “shield” sources.
                It has become far too easy for the media to make up stories, claiming to have anonymous sources and to print/broadcast false information about anyone, and not be held to the same standard as a private citizen.

            3. Supposing that the effect of NYT v. Sullivan were limited in some fashion, how would liability be measured? Can a newspaper still be sued for an “initial report” that is later found to be false and retracted? Does the retraction mitigate the measure of damages?

              1. Can a newspaper still be sued for an “initial report” that is later found to be false and retracted? Does the retraction mitigate the measure of damages?

                It should, yes.

                A strict liability standard is too far one way (they can be liable for anything that turns out to be false). An actual malice standard is arguably too far the other way (they can’t be liable unless they had actual malice). Negligence or possibly even gross negligence seems about right to me, without having given it too much thought.

                I just think the “too be sure” about Hillary, essentially equating her position with Trump’s, is absurd.

                1. I agree. The malice standard is extremely difficult to prove and the media know it. Whether or not our libel laws should be revisited is a legitimate topic of discussion. Hilary on the other hand would preemptively ban speech. Not the same thing.

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  2. So we have yet another case of “what Trump might do could be as bad as/worse than what Clinton will do.”

    If Trump is proposing that all publications be subject to prior restraint lest they publish defamatory material, than he would be worse than Clinton. But that’s not what he said.

    1. What he did say is that he would appoint constitutionalists to the court, shooting his attempts at censorship in the dick.

      I think Clinton intends a different strategy.

  3. Medicaid expansion more expensive than expected, by nearly half again as much as estimated.

    “We were told all along that the expansion population would be less costly,” said health economist Brian Blase with the Mercatus Center at George Mason University in Virginia. “They are turning out to be far more expensive.” Blase previously served as a GOP congressional aide.

    The new estimates could be a warning light for Democrat Hillary Clinton, who has promised that if elected president she would work to expand Medicaid in the remaining 19 states that have not done so. Higher costs would make it harder for a President Clinton to sell Obama’s full-financing plan to Congress.

    Under the law, people making up to 138 percent of the federal poverty line ? roughly $16,390 for an individual and $33,530 for a family of four ? are eligible for Medicaid at little or no cost to them.

    1. Higher costs would make it harder for a President Clinton to sell Obama’s full-financing plan to Congress.

      With Paul Ryan back as Speaker of the House, I suspect this won’t really be an issue.

      Now, the remaining vestiges of federalism might be, but not principled opposition to debt-financed welfare.

      1. The feds are already offering to fully fund expansion for up to three years, and even then few states are biting. How Clinton expects to up the ante, I have no idea.

        1. Fully fund the expansion indefinitely.

          Of course, I’m still not sure they can mandate that states expand. That’s the other half of the Sibelius opinion, essentially severing participation in the expansion from participation in Medicaid.

    2. The people who spouted these lies are despicable, but it still floors me that so many people believed them (or didn’t care).

  4. In b4 libel expansion apologia

  5. There are laws against libel, slander, and defamation already on the books,

    and there are also laws against racketeering, avoiding the FOIA, and murder already on the books,

    1. All of those laws need to be reinforced, especially with regard to the scourge of Internet trolls sapping our society of its strength. Thank heavens no one is allowed to send out inappropriately deadpan “confessions” in the “name” of Hillary Clinton or Donald Trump. See the list of outrageous “speech” that needs to be criminalized throughout this great nation at:

      http://raphaelgolbtrial.wordpr…..rsonation/

  6. Trump before Clinton? Obvious Clinton shill piece.

  7. “Both Trump and Clinton want new laws to make it harder to criticize them.”

    One is likely to get their wish, the other almost certainly won’t.

  8. Maybe Trump is just thinking about some “reasonable restrictions” for the First Amendment…
    You know.
    Just like the media / Statists call for when the subject is the Second Amendment.

    1. On the scary scale everything Trump has said pales in comparison to this:

      “”If it is a constitutional right, then it, like every other constitutional right, is subject to reasonable regulation,” Clinton said.

      1. Agreed.
        Trump is pretty bad on the subject of Individual rights.
        However, he looks absolutely Libertarian when compared to Hillary.
        And now that I’ve had the time to evaluate, I would go so far as to say Trump is MORE Libertarian than Johnson and his running mate. Much more.
        Trump values value. He respects the creation of wealth and man as a moral idea within himself – as Ayn would say.

        1. I would go so far as to say Trump is MORE Libertarian than Johnson and his running mate. Much more.

          Uhhhh.

  9. I suspect that Trump and Clinton understand the First Amendment perfectly well, and don’t like it.

  10. Fisher, you are full of shit. Since when has reason given a flying fuck about free speech? This article is nothing more than casting stones while living in a glass house. I have written numerous e-mails to several of the writers at this rag about Mark Steyn and yet they have yet to write a single word in his defense.

    So basically reason=both Trump and Clinton.

    1. I have written numerous e-mails to several of the writers at this rag about Mark Steyn and yet they have yet to write a single word in his defense.

      A puzzling omission. His case is one of the bigger 1A cases currently in play. And an excellent example of “the process is the punishment”. If you really want to protect free speech from the courts, there’s some work to be done on streamlining the process.

    2. Spot-on. The lack of support for Steyn from the likes of Reason is appalling.

      1. Agreed

    3. So, failure to cover one particular story means Reason has never cared at all about free speech? Not sure how you get there. And if you do, why you are still reading Reason every day.

  11. As usual, Trump is held accountable for interpretations of vague comments.

    yeh, we get it, you hate Trump.

    the rest of us thinking creatures can weigh Trump and Hillary’s comments regarding Free Speech ourselves.

    to me, I would love a clearer standard to hold the press accountable for publication of blatant falsehood and propaganda. I fail to see why the NYT can write whatever they want, quoting anonymous sources, and be largely free of repercussions. We can all hopefully agree that the MSM has turned into a prog propaganda arm and its impact on elections is enormous and detrimental to a free society.
    I really don’t see anything wrong with someone like Trump bringing up for discussion finding ways to inhibit the lies and distortions. So…what…are we not even allowed to discuss holding the press accountable? Or is Reason’s TDS just too far advanced at this point.

  12. Re: Trump’s Tweet:

    “It is not “freedom of the press” when newspapers and others are allowed to say and write whatever they want even if it is completely false!”

    I suspect you would find that the vast majority of the country would find this statement completely unobjectionable.
    I also suspect that if you detailed what a public figure has to go through to force a retraction or compensation from the “press” most of the country would be appalled.

    1. Maybe so. But it is freedom of the press when anyone is allowed to publish whatever they want. Laws against libel and such are restrictions on free press. Maybe they are reasonable or even necessary, but they are limitations on the freedom of the press.

      1. Libel and slander have been in this country since the beginning. As far as I can tell, the founders didn’t see any incompatibility between punishing those offenses and protecting freedom of the press.

        That having been said, you are correct. However, the standard of providing defamation is very high and would still remain pretty damn high even if what R C Dean says about Trump’s intentions is true and Trump were to get what he wants.

        1. I would think that one’s reputation, good or bad, is property. If someone maliciously steals it one should have civil recourse. I don’t see how that could possibly be incompatible with the 1st amendment.

  13. To hop on board with what several others have said:
    Trump has never held elective office. What specifc legislation, or executive order has he ever supported, which was hostile to the 1st Amendment? He has sued over libel, and one can argue the merits of those cases. But that was an individual going to go court against specific examples. Not prior restraint.
    Clinton on the other hand has suggested a constitutional amendment to reverse Citizens United.

    I get that Trump is bad. But on most things, as bad as Trump is, Clinton is demonstrably worse. That doesn’t necessarily mean vote for him. But, this is getting ridiculous. Fisher has gone from TDS, to the far more dangerous phase of the disease: “Trump is Hitler and We Must Go Back in Time to Kill Him as a Child!” Syndrome.

    1. We Must Go Back in Time to Kill [Hitler] as a Child!

      Spoiler alert: this doesn’t work out so well.

  14. Top rulers know what’s best for you, a mere serf.

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