President Donald Trump is all cozy with the First Amendment when he’s facing down a lawsuit filed against him for his tweets and tough talk.
Trump cited his own free speech rights to win dismissal in January of a $4-million libel lawsuit over his tweets. He’s claiming a First Amendment right to shout “get ’em out of here” at campaign rallies to avoid being held responsible for inciting violence against protesters in a Kentucky lawsuit.
But sometimes the White House gets free-speech amnesia. Like this weekend, when Chief of Staff Reince Priebus said that the Trump administration is taking “a look at” weakening speech and press rights. Or when Trump tweeted on March 30, “The failing New York Times has disgraced the media world, gotten me wrong for two solid years. Change the libel laws.”
Trump’s split personality on free speech rights — they should apply to me but not to you — is hypocritical and ill-informed, lawyers say.
“Of course he’s constantly saying outrageous things and maybe he doesn’t realize that much of what he says doesn’t end up in a lawsuit is because of the First Amendment protections that are out there,” Gregg Leslie, legal defense director of the Reporter’s Committee for Freedom of the Press, told TheWrap.
Attorney Jay Butterman, who is fighting against Trump in a New York libel case, agreed.
“It is, of course, offensive to watch Donald Trump cower behind the very libel laws he decries,” Butterman told TheWrap. “But hypocrisy, unlike defamation, is not remedial in a court of law,”
Butterman is representing Cheri Jacobus, a longtime political consultant who filed a $4-million libel suit against Trump in April 2016 after he tweeted that she “begged” for a job for the campaign and had “zero credibility” and was a “major loser.”
Trump won dismissal off the lawsuit on Jan. 10, when a New York judge agreed with Trump’s argument that his tweets were protected by the First Amendment as hyperbolic opinions.
The judge ruled that no one would give Trump’s personal Twitter account “serious consideration” because his tweets were “rife with vague and simplistic insults such as ‘loser’ or ‘total loser’ or ‘totally biased loser,’ ‘dummy’ or ‘dope’ or ‘dumb,’ ‘zero/no credibility,’ ‘crazy’ or ‘wacko’ and ‘disaster.’”
Media attorneys also dismissed Trump’s pledge to “change” or “open up” libel laws as an empty threat, pointing out that libel laws are enacted by state legislatures, and the Supreme Court is unlikely to reverse decades of decisions providing strong First Amendment protections for the press and public in libel cases.
“The President can’t change the law, certainly not constitutional law that has been in place for over 50 years; only the Supreme Court can do that,” said George Freeman, executive director of the Media Law Resource Center.
Leslie of the Reporter’s Committee said, “It’s probably like health care and the presidency itself — he doesn’t realize how difficult it is until he gets into it.”
Trump could seek a constitutional amendment to the First Amendment. But it is extremely unlikely that such an amendment would get off the ground in Congress or in the states.
A constitutional amendment would require two-thirds of the vote in both the Senate and Congress, plus ratification by three-quarters of the state legislatures (38 states) or two-thirds of the states meeting at a ratification convention (34 states).
“This would require an extremely unlikely scenario of madness engulfing the nation in the form of a mass desire to eliminate the First Amendment, so it does not seem that any effort in that direction on a national level would be more than a waste of time,” attorney Butterman said.
“If that were at all possible, we would have probably already entered the world of ‘The Handmaid’s Tale’ and have even greater problems to contend with,” he said.
Perhaps Hasan Minhaj said it best when he slammed Trump’s First Amendment split personality at the White House Correspondent’s Dinner on Sunday.
“The man who tweets everything that enters his head refuses to acknoweldge the amendment that allows him to do it,” Minhaj said. “And that’s his right. And I’m proud that all of us are here tonight to defend that right, even if the man in the White House never would.”