Sunday, December 4, 2016

The Tweets of a President - Part II

Last week, President-elect Trump tweeted:  "In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally."  (emphasis added)

There has been no reported evidence (including from Mr. Trump) to support that statement.  In fact, Trump's own lawyers in the Michigan recount case filed papers with the court that stated "All available evidence suggests that the 2016 general election was not tainted by fraud or mistake."  (see MSNBC Article).  Newt Gingrich told USA TODAY that there's no such evidence, suggested that Trump needed someone to review his tweets, and admitted that it "
makes you wonder about whatever else he's doing. It undermines much more than a single tweet."  (see USA Today Article).

Sean Hannity, who openly supports Trump in a way that is much more in the nature of a propaganda outlet than an independent member of the media, attacked CNN for not agreeing with Trump about the "millions of people who voted illegally", but Hannity did not even try to offer any proof in support of Trump's claim.  

Facts are Facts

Facts are not political - facts are facts.  If millions of Americans engaged in voter fraud such that Trump should have won by a larger margin, that should absolutely come to light.   But if - as is the case - that didn't happen, then to fool people into thinking it did happen is totalitarian propaganda that erodes the foundations of democracy.  

Because - as discussed below - Trump's tweets are largely protected by the First Amendment, there's a need for public officials, the media and private citizens to hold him accountable to the truth.  Today, that is not happening.  

On Sixty Minutes, which aired on December 4, 2016, Scott Pelley asked Congressman Paul Ryan to comment on Trump's tweet about voter fraud.  Ryan refused to say that the President's statement was untrue, stating that he didn't care and that he wasn't focused on Trump's tweets.  The Constitution builds in separation of powers among the executive, legislative and judicial branches of government, but for those protections to work, government officials have to be willing to stand up for what's right.  
Ryan's failure to debunk a lie - which many believe because it comes from the President-elect - is disappointing, given his leadership role in Congress.  

The media is flawed, including because of the 24 hour news cycle, profit motive and erosion of professional ethics.  That said, there are many people in the "mainstream" media who are doing valuable work, who are experts at fact finding, and who are just motivated to find the truth.  But the partisan attacks on the media in an effort to completely delegitimize it - together with the increased reliance on "echo chamber" social media (where people seek reinforcement of their own ideology rather than objective facts) - have caused some American's to ignore completely major media outlets, opening the door for propaganda.

Ronald Reagan's Words Versus Trump's Words About What Makes America Great

Consider the treatment of the First Amendment by President Ronald Reagan, when he spoke on May 31, 1988 at Moscow State University, after America won the Cold War. 

Reagan stated:

"Freedom is the recognition that no single person, no single authority or government has a monopoly on the truth but that every individual life is infinitely precious.... 

In fact, one of the largest personal computer firms in the United States was started by two college students, no older than you, in the garage behind their home.... [Note: Steve Job's father was a Syrian immigrant...]

We Americans make no secret of our belief in freedom. In fact, it's something of a national pastime. ... About 1,000 local television stations, 8,500 radio stations, and 1,700 daily newspapers -- each one an independent, private enterprise, fiercely independent of the Government -- report on the candidates, grill them in interviews, and bring them together for debates. In the end, the people vote; they decide who will be the next President....

Go to any American town, to take just an example, and you'll see dozens of churches, representing many different beliefs -- in many places, synagogues and mosques -- and you'll see families of every conceivable nationality worshiping together...  

Go into any schoolroom, and there you will see children being taught the Declaration of Independence, that they are endowed by their Creator with certain unalienable rights -- among them life, liberty, and the pursuit of happiness -- that no government can justly deny; the guarantees in their Constitution for freedom of speech, freedom of assembly, and freedom of religion...

Go into any courtroom, and there will preside an independent judge, beholden to no government power..." 

Does Trump believe that American's greatness is based on a free market of ideas, the Constitution and the rule of law, or does Trump think that he alone is the sole source of the truth?  

Applying the First Amendment to Trump's Tweets

Understanding the First Amendment helps to illustrate the risks posed by Trump.  

There is a huge body of First Amendment law, which is nuanced, subject to change over time, and sometimes logically inconsistent, but below are 4 questions that help to clarify some of the basics of how to apply the First Amendment to Trump's tweets:  

(i)       why does the First Amendment matter?
(ii)      what is the content of the communications (the tweets)?
(iii)     in what capacity is Trump speaking (tweeting)? 
(iv)     where is the speech happening?

Why Does the First Amendment Matter (and What Does it Say About Our Values as Americans)?

As is often the case, the "why" is the most important question.

In totalitarian states, there is only one point of view - that of the government, which typically controls the media and is willing to jail journalists.  In a democracy, individual citizens vote for their representatives, and need to exchange ideas, make informed decisions, debate opinions, communicate opposition, and engage with and criticize their representatives about government policies.  Because government has so much power over individual liberty, the law recognizes the need of citizens to be able to critique elected officials without fear.  

A professional media also plays a critical role, as an independent fact-finder and shiner of light on government activities.  That is why in addition to the Executive, Legislative and Judicial branches of government, the media is sometimes referred to as the "Fourth Estate."

Supreme Court Justice Brandeis, in the Whitney v. California, 274 U.S. 357 (1927) case explained the belief in a free market of ideas, combined with protection of minority opinions:  

"Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject... Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed."

Moreover, the freedom to speak our minds, and to learn from and disagree with others in pursuit of the truth, isn’t just something that's needed to be a good US citizen, it is a core human value.  It is why most Americans believe that the government should not tell us what to think, and why we are so lucky to live in the US and not in a totalitarian state.  

What Communications Are and Are Not Protected Speech Under the First Amendment?

Courts have recognized certain narrow categories of speech that are entitled to essentially no First Amendment protection, such as speech related to child pornography, treason, and that causes imminent threat of violence and lawlessness.  

Courts also tend to inspect the content of speech and apply a hierarchy to it - speech related to the political process gets the highest levels of protection, and other speech, such as Hollywood gossip, would get less protection. 

I note that Trump's tweet about wanting to criminalize flag burning is understandable, but not consistent with our current interpretation of the Constitution.  Thus, the Supreme Court has found that one of the most vile and sickening forms of speech – the burning of the American flag – is in fact political speech, protected by the First Amendment.  Texas v Johnson, 491 U.S. 397 (1989) (the majority - both liberals and conservatives, including the late Justice Scalia - supported this decision finding that, "The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.")

Why Does Libel Get First Amendment Protection?  

Trump has also written that he wants to "open up" the libel laws, to make it easier to sue the media for false statements.  He was likely paying attention when Peter Thiel helped fund a lawsuit that put out of business the Gawker web site.  Gawker had previously outed Mr. Thiel, which was despicable, but the idea of making it easier for billionaires to sue out of existence media companies that print bad things about them is a threat to the First Amendment.  

In any event, Trump's statement underscores his lack of understanding of the law.  There is actually no federal libel law; rather, each state has its own libel laws.  Thus, to "open up" these laws would require him to lobby 50 separate state legislatures, which isn't likely to happen.

More importantly, his statement ignores the First Amendment precedent established by the Supreme Court.  In NY Times v. Sullivan, 376 U.S. 254 (1964), the Court held that factual errors in a story about someone who is a public official is not enough to subject the media to damages in a lawsuit.  Rather, there has to be a higher showing of "actual malice" (essentially, that the story was not just untrue, but also that the publisher of the story knew it was false and published it anyway).  

That higher legal standard is a recognition that if the media were to be sued for every factual mistake, their coverage of public officials would be chilled by the threat of such lawsuits.  

In the Sullivan case, an Alabama official sued for libel based on some factual misstatements in a newspaper advertisement relating to the arrest of Dr. Martin Luther King Jr., including that the ad overstated the number of times that Dr. King had been arrested by the Alabama police.  After an all white Alabama jury ruled in Mr. Sullivan's favor, the Supreme Court unanimously - liberals and conservatives - reversed, finding that the interest of reporting of information about public officials outweighed the risk of factual misstatements sometimes being made.  376 U.S. at 272.

Although perhaps not likely, it is possible that Mr. Trump himself could be sued for libel during his Presidency for the statements he makes about others.  If so, he would be the beneficiary of the those same First Amendment protections.  

In What Capacity Will Trump be Speaking?

The First Amendment protects against government or “state” action, not against private actions.  In practice, it can be hard to distinguish between private and government actions, as there can be overlap.   Tweets by their nature will not typically involve state action (core state action is the passage and enforcement of a law that impacts speech rights).  Government officials also have free speech rights to communicate support for their own government policies.  

It remains to be seen what he will say and do as President, but we can expect that Trump will have significant freedom to express his points of view on Twitter, including lies (subject to the libel laws), and attacks on the media (even if unfair).  

Where is the Speech Happening? 

First Amendment protections may differ depending on where the speech happens.  For example, free speech rights are greater in a public park than in a privately owned shopping mall.  Similarly, traditionally, the government (Federal Communications Commission - FCC) regulated obscenity on TV, but similar regulations have not been extended to the internet.  

Twitter is today a place where speech is unregulated by the government - although Twitter itself can and has set limitations on speech (as it is not a state actor).  

Demand the Truth We Deserve

In sum, Trump’s tweets are likely to be protected speech, he will be the most powerful person in the world, and he will have the loudest voice in the free market of ideas.  

Responsible citizens should demand that their representatives tell the truth.  Responsible citizens should also hold themselves personally accountable to the truth, and be open to getting information from non-partisan sources.  I note that having a reasonable discussion with people who disagree with you is one of the best ways to sharpen your own arguments...

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