Faux conservatives within the Republican Party and the media often point to Donald Trump’s Supreme Court appointments as one of his accomplishments, but based on recent comments made by Neil Gorsuch, we could soon see the court Trump “saved” bring an end to the First Amendment — specifically, freedom of the press (via New York Times):
Four years ago, at his Supreme Court confirmation hearings, Justice Neil M. Gorsuch indicated that a 1964 precedent protecting press freedom was secure. “That’s been the law of the land for, gosh, 50, 60 years,” he said of the decision, New York Times v. Sullivan, which made it very hard for government officials to win libel suits.
But last month, Gorsuch said it was time for the Supreme Court to take another look at the case. “What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets,” he wrote in a dissenting opinion, “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
He is not alone in calling for reconsideration of the decision, which has only one rival as the most important legal triumph for the press in American history, also involving The Times, the Pentagon Papers decision in 1971. Justice Clarence Thomas, for instance, has repeatedly called for the Supreme Court to reconsider Sullivan and rulings extending it, saying they were “policy-driven decisions masquerading as constitutional law.” (emphasis mine)
Publication of falsehoods? Sounds a lot like the words used by the man who nominated Gorsuch, but with one exception: Trump used the words “Fake News.” And connecting fake news to libel laws served as the foundation of his presidency.
Throughout his presidency, Trump repeatedly demonstrated his hatred of the Constitution and limitations it put on his egomaniacal ambitions. Nowhere was this more evident than the day he labeled the press the “enemy of the American people.”
Trump’s disdain for the First Amendment and freedom of the press first reared it’s orange-colored head in February 2016 at a campaign rally when he promised to open up libel laws so that when the media “writes purposely negative and horrible and false articles, we can them and win lots of money.”
“If I win . . . I’m going to open our libel laws so when they write purposely negative horrible and false articles, we can sue them and win lots of money.”
In January 2018, Trump renewed his commitment to destroy the First Amendment and freedom of the press when he announced in a staff meeting that he would again pursue ways to expand libel laws to silence media outlets that publish unfavorable news about him and his policies.
“Our current libel laws are a sham and a disgrace and do not represent American values and American fairness. We’re going to take a very, very strong look at that.
”You can’t say things that are false, knowingly false, and be able to smile as money pours into your bank account.”
But you CAN file “false, knowingly false” lawsuits across the land “and be able to smile as money pours into your bank account” (see: The Big Money Behind The Big Lie). Right, Donnie?
In October 2019, Trump acted on his desire to destroy freedom of the press when lawyers representing him and his 2020 campaign (Donald J. Trump for President, Inc.) sent a letter to CNN announcing their intention to sue the network for “a substantial payment of damages” due to the network’s so-called anti-Trump bias. Lead attorney Charles Harder stated in part:
“Never in the history of this country has a President been the subject of such a sustained barrage of unfair, unfounded, unethical and unlawful attacks by so-called ‘mainstream’ news, as the current situation.
“My clients intend to file legal action against you, to seek compensatory damages, treble damages, punitive damages, injunction relief, reimbursement of legal costs, and all other available legal and equitable remedies, to the maximum extent permitted by law.”
In other words, Trump determined that “anti-Trump bias” was a libelous action, not that CNN said anything untrue. This was the only motivation behind the threat against CNN, and it’s one of the reasons why any attempt by Trump’s Supreme Court to “revisit” New York Times v. Sullivan must be met with a great deal of skepticism.
“There is a reason that Donald Trump and other politicians hate the Sullivan standard so much,” said RonNell Andersen Jones, a law professor at the University of Utah. “It is a key way that we make sure that government officials and other people in power can’t silence their critics. It would be a massive blow to American-style free speech to lose it.” (emphasis mine)
Even within so-called conservative circles of the Republican Party, attitudes about the First Amendment and freedom of the press have been taking an unconstitutional turn — particularly in the Age of Trump — and they wouldn’t mind seeing the Supreme Court getting involved.
An August 2017 poll conducted by YouGov on behalf of The Economist showed Republicans overwhelmingly supporting Trump over freedom of the press. And when asked if they “supported or opposed permitting the courts to shut down or fine news media outlets for publishing or broadcasting stories that are biased or inaccurate, nearly half favored shutting them down, and over half favored fining them.
Media bias is real and expected, but it’s not unconstitutional. What IS unconstitutional, however, is any attempt by Trump’s Supreme Court or any other branch of government to destroy the First Amendment and freedom of the press simply because politicians don’t like what is being reported about them.
From the very beginning, the Founding Fathers considered freedom of the press a bulwark against out-of-control government, and they believed that citizens should be free to use the press to criticize the government without interference:
“I am … for freedom of the press, and against all violations of the Constitution to silence by force and not by reason the complaints or criticisms, just or unjust, of our citizens against the conduct of their agents.” ~ Thomas Jefferson
A free press, even a biased one, is vital for holding government accountable . . . and for securing liberty in America.
David Leach is the owner of the Strident Conservative. He holds people of every political stripe accountable for their failure to uphold conservative values, and he promotes those values instead of political parties.