FIRST AMENDMENT, MEET LAST AMENDMENT
TRUMP’S THREAT TO CHANGE THE FIRST AMENDMENT IS JUST MORE OF THE SAME: MEANINGLESS DRIVEL
La Femme Qui Pleure Two-and-a Half, Oil on Masonite, 48" x 20", 1993, Richard J Van Wagoner, Courtesy of Helen Bero-Van Wagoner and Richard A. Van Wagoner** (previously posted in http://lastamendment.com/2017/02/26/last-amendment-vii-2/ PENCE: “‘CHOICE’ IS NOW LIMITED TO VICTIMS OF LEGITIMATE RAPE”)
The disassembling, self-destructing Administrative State has “looked into changing the First Amendment,” presumably to “open up” the libel laws, making it easier to sue and recover for libel against the “fake” media, or at least create a chilling effect on its reporting. As I suggested in a post earlier this week, Trump’s and Reince’s blather about changing the First Amendment is just more bluster, meant only to play to the Fox crowd and Trump’s base because, as a recent The Daily Beast article accurately explained, if the libel laws are loosened, Trump, who is a “target rich environment . . . would get sued into oblivion,” as would Trump’s favorite commentators and news organization. http://www.thedailybeast.com/articles/2017/05/04/if-trump-loosened-up-libel-laws-he-would-get-sued-into-oblivion?via=ios
Fox may be in enough trouble as it is, assuming the Murdochs hid from shareholders the massive sums it was forced to pay victims of its serial, unhinged and seemingly unfettered sexual harassers. (Southern District of New York Grand Jury? No wonder Trump fired Preet Bharara.) Come to think of it, Fox News’ serial, unhinged, unfettered sexual harassers might explain at least some of Trump’s affinity for the over-stimulated Republican organ. That, and the fact that Fox continuously fellates his Republican organ (metaphorically, hyperbolically and satirically speaking, of course). Yes, Republicans, you bought it and now own it.
Even if Trump could, through some mystical power, “open up” the libel laws to make it easier for him to sue the “fake” media, truth is an absolute defense to a claim of libel. Whenever he opens his mouth Trump demonstrates himself unable to recognize facts or tell truth even when doing so might help him. In contrast, the media has the ability to fact check what he says and, excepting Fox and its comrades in propagandistic misinformation, fervidly gathers and banks verifiable evidence. All to say, in the legal realm, where facts and truth must be defended with evidence, Trump can’t challenge the media on the merits of its Trump-related reporting with any hope of prevailing. https://www.washingtonpost.com/opinions/trump-has-a-dangerous-disability/2017/05/03/56ca6118-2f6b-11e7-9534-00e4656c22aastory.html?utmterm=.960538bf3806
I hope the Trumps didn’t deplete too much of the national treasury on expensive DC lawyers to research just how to go about “changing the First Amendment” when they “looked into it” (after all, what would they do with all that free time if the government could no longer afford to pay for their travel?). Interested parties who know something, anything, about the United States government and history, took fifth grade civics, and/or know how to Google on the “internet machine” (Rachel Maddow) might recall the existence of Article V of the Constitution. A quick refresher:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment . . . shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
Untitled, Pencil on Paper, 39.5" x 25.5", Richard J Van Wagoner, Circa 2000, Courtesy of Van Wagoner Family Trust**
One might ask why loosening the libel laws would require changing the First Amendment. I guess it wouldn’t if Trump packed the Supreme Court with idiots elevated via a confirmation process conducted (which means bungled) by an equally mentally challenged majority of the Senate. Until recently, such a specter didn’t seem all that plausible.
Short of that [apocalyptic clown car], I’m guessing the First Amendment Speech and Press Clauses have sufficient status as the most compelling checks on power under the Constitution to prevent proponents from garnering the two-thirds and three-fourths. My personal opinion is the First Amendment contains the most significant protections and assurances toward open self-governance, and is yugely more important than the putative constitutional checks and balances. We all know politics and greed (power, money) often prevail over oaths of office in the three separate but equal political branches of government, undermining the idea that said branches serve as legitimate checks on the others’ power and abuses. A few recent examples? Bush v. Gore; Chaffetz and the House Oversight Committee; emoluments; Nunes and United States Permanent Select Committee on Intelligence; Sessions.
I don’t want to discount the importance of the ballot as a constitutional check on government power and its abuses — absent sabotage it can and has served the people well. But the democratic process is and continues to be undermined by gerrymandering, Russia and, shall we say, laws and tactics meant to suppress the vote of those who would throw those bastards out of office.
Libel and slander — defamation — are recognized under personal injury law as harm arising from false publications. The law of libel (written) and slander (verbal) does this delicate dance with the First Amendment. The United States Supreme Court has recognized the need to avoid the “chilling effect” libel laws could have on debate, dialogue and the dissemination of truth about public affairs, public officials and public figures. “Opening up” libel laws the way Trump says he wants would result in self-censorship, discouraging both lawful and unlawful conduct. Individuals and the media, fearing they were wrong (or distrusting authority’s competence or willingness to find them correct), would err on the side of remaining silent, which silence, in my opinion, should be mostly limited to people responding to police interrogations. Trump’s inability to self-regulate the endless absurdities his “very smart brain” excretes would condemn him to lawsuits ad infinitum.
Political speech enjoys the highest level of protection under the First Amendment. The Court imposes a high constitutional standard to give “breathing space” to the political process. In order to ensure debate is “uninhibited, robust, and wide open,” the Court established a very difficult standard for public officials and public figures to meet in order to recover for libel or slander. In a unanimous 1964 decision the United States Supreme Court ruled in favor of the “failing” New York Times, holding that a “public official” must show that the newspaper acted “with ‘actual malice’ — that is, with actual knowledge that it was false or with reckless disregard” for truth. “[A] little falsehood must be tolerated so that citizens will not engage in self-censorship for fear of criminal prosecution or a ruinous civil suit.” http://www.firstamendmentstudies.org/sp/lible.html
As it should the First Amendment protects various additional forms and types of speech, particularly in the political realm, such as opinion, fair comment and criticism and parody and satire which blur the lines between truth and outrageousness. See Hustler v. Falwell, for which we all owe that smut peddler who spewed verbal sewage Larry Flynt (not to be confused with Jerry Falwell) an extreme debt of gratitude for championing First Amendment rights after he parodied Jerry Falwell’s first sexual experience. As offensive as that was to many, including Mr. Falwell whose feelings were hurt — along with his mother’s I suspect, and possibly a goat’s — mocking leaders and political figures is an important form of dialogue that enjoys First Amendment protection. Trump should be careful what he asks for if he wishes to continue to worship at the feet of the Limbaughs, O’Reillys, Hannitys, Joneses, Murdochs, Putins and Dutertes.
As grandiose as Trump imagines himself to be, he can’t “change” the First Amendment, even if doing so is on his to-do list of despotic goals. And any claim that he can simply verifies George Will’s latest diagnosis of a very dangerous mind. Mr. Trump simply does not know what it means to know something.
*My brother the fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in lastamendment.com are hers