Trump vs. Free Speech
One of the great dangers of Donald Trump’s candidacy is his casual willingness to exploit legitimate American frustration and anger and stir them into something ugly for his own benefit. But careless anger-baiting has consequences, one of which is that you risk turning your followers into an enemy-eating monster, greedy for your next attack on yet another victim, and dying for this attack to be more vicious and bloodier than the last. You are then forced to feed this monster in order to retain its enthusiastic support. This is the mechanism whereby a thin-skinned, pampered showboat may become a genuinely tyrannical figure.
For months, reasonable people (plus this semi-reasonable one) have been arguing that a movement fueled by undirected anger — that is, anger that has forgotten exactly why it arose in the first place — will finally run out of “legitimate enemies” to eat, and will start unwittingly devouring its friends, and even, finally, itself.
This final inversion is underway. Trump, who has no knowledge of, or concern for, limited, constitutional government, has now officially shifted from dismissing constitutionality to openly opposing it. Appropriately enough, he is beginning at the beginning, namely with the First Amendment right of free speech.
At a recent rally in Nuremberg… oops, Fort Worth, Texas, Trump whipped the crowd into a lather against two easy targets, The New York Times and Washington Post, as a stage-setter for this fascinating announcement:
And believe me, if I become president, oh do they have problems, they’re gonna have such problems! And one of the things I’m gonna do, and this is only gonna make it tougher for me — and [waving his finger] I’ve never said this before — but one of the things I’m gonna do if I win… is I’m gonna 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. We’re gonna open up those libel laws, so that when The New York Times writes a hit piece which is a total disgrace, or when The Washington Post… writes a hit piece, we sue them and win money instead of having no chance of winning because they’re totally protected. You see, with me they’re not protected because I’m not like other people, but I’m not taking money, I’m not taking their money.
What does he mean by “a hit piece”? (Every article I’ve written criticizing Trump has been called a “hit piece” many times, thus apparently setting it within range of Trump’s threat against opinions he would punish.) What does he mean by “purposely negative and horrible and false articles”? Is he talking about genuine libel, which is already covered by (state, not federal) law? Or is he talking about “opening up” the libel laws to encompass editorial opinions that merely express harsh criticisms and “negative” judgments of a politician or party, i.e., using the courts and financial retribution to restrict the way private individuals may safely interpret events, assess motives, or critique policies? Does Trump even know what he is talking about? In legal and constitutional terms, the answer is obviously “No.”
But in terms of tone, as usual, the Big Lie Candidate knows exactly what he is doing. Notice how the word “false” is barely an add-on throughout his rant. He is not focused on false accusations. He is focused on mean things people might say about him. The leading concern, and the gist of the whole spiel, regards not libelous speech, but “purposely negative” speech, i.e., criticism. And even regarding falsehood, remember that Trump has a recent history of labeling as “false” any accurate description of his own statements and past actions that happens to be inconvenient for him this week, and of threatening legal action against the perpetrators of such inconvenient truths.
Even if, like most of Trump’s banter, this is just a blowhard threat — “I’ll sue you” seems to be the Trump Buffet’s house whine — it serves its main purpose as just that, a threat. He is trying to shut people up with intimidation, scare tactics, and the insinuation that he controls an angry mob ready to lynch anyone who stands in his way whenever he chooses to unleash them. He clearly senses that the moment he clinches the nomination, the mainstream media, having given him a virtual free ride thus far, will descend upon him like a swarm of locusts with all the material they’ve been holding back until now. He is preemptively promising to fight back, not with facts, but with legal and financial punishment for speech that does not meet with his approval. (I note with extreme understatement that the crowd in Fort Worth reacted to this direct assault on liberty enthusiastically, cheering him on, seemingly on the premise that “He may be a dictatorial thug, but at least he’s our dictatorial thug.”)
And let’s be emphatically clear: Trump is not simply referring to private legal action against genuine defamation (although that is the cover story his apologists will use to protect both Trump and their own consciences). It is a threat he is holding out as “one of the things I’m gonna do if I win.” In other words, he is promising to use President Trump’s Department of Justice to personally punish adversaries and critics (“we can sue them”) when they write things he deems “negative,” a “hit piece,” or “a total disgrace” against him.
The quintessentially Trumpian element of this very direct assault on the principle of freedom of speech is that the anger he is tapping into in this case — disgust with a duplicitous, subversive mainstream media — is completely fair and legitimate. The solution he offers — tossing limited government and the basic civility on which republicanism depends out the window — is the stuff of tragedy.
Yes, one wishes the American press were not dominated by apologists for socialism and political correctness; and no, the press should not be artificially shielded from culpability in cases of genuine libel. But if you think that’s all Trump was saying in his big “I’ve never said this before” announcement, then perhaps you ought to consider how you’d react if a (non-covert) progressive politician gave that same speech, substituting Rush Limbaugh for the Post, and The Heritage Foundation for the Times, and warned that “If I become president, they’re gonna have such problems!”
Or just ask Mark Steyn (who has been very friendly to Trump’s campaign so far) what this “opening up” of the libel laws might imply for the free discussion of political ideas. Or Pamela Geller, whom Trump criticized as partly responsible for the violent attack against her “Draw Muhammad” contest in Texas in 2015, on the grounds that those nasty free speech activists shouldn’t have been “doing something on Muhammad and insulting everybody.”
We have all seen that there is no one Trump would hesitate to slander and smear in a hundred ways, if he regarded that person as any kind of competitor; but his defense of his own behavior would apparently not be related to any general right of free speech, with which he has little patience, but rather to the simple fact that he’s Donald Trump and you’re not. If you can live with that mentality in your leader, go ahead and continue supporting Trump. (Although if you can live with that mentality, I have no idea what objection you have to the current president or Hillary Clinton.)
George W. Bush was rightly vilified for whitewashing the crony corporatism of the bank bailout as “abandoning capitalist principles in order to save the capitalist system.” Trump and his followers, true to form, are proposing to abandon America herself — the entire tradition of the rule of law, separated powers, and constitutionally protected natural rights — in order to save America. I argued after the 2012 election that time had run out on short-term electoral solutions, and that a more fundamental, generations-long revival of the characteristics and sensibilities of civilized modernity (i.e., radical education reform) must be undertaken before electoral politics can be expected to provide substantial benefits again. Recent events have reaffirmed that belief.
A final note on Trump’s easygoing constitutional pyromania. I’m no lawyer, but from what I understand, falsely accusing someone, in a public forum, of having been paid off by a candidate, party, or special interest to express a certain opinion, or of being a “fraud,” as a means of undercutting that person’s credibility and reputation, would fall within the typical range of libelous language. I, like anyone else who has criticized Trump in a public forum over the past few months, have been hit with such accusations regularly. I don’t threaten to sue anyone over it, however, because I understand that the only civilized way to defeat stupid ideas is with better ideas, falsehood with truth, irrationality with reason – which is to say I’m a normal adult, not a petulant, power-intoxicated demagogue.