Yesterday in a rally in Texas, Donald Trump promised the cheering crowd that if he is elected that he will gut the First Amendment.
TRUMP: Washington Post, I have to tell you, I have respect for Jeff Bezos, but he bought the Washington Post to have political influence, and I gotta tell you, we have a different country than we used to have. We have a different... he owns Amazon, he want's political influence so that Amazon will benefit from it, that's not right. And believe me, if I become president, oh, do they have problems. They're going to have such problems.
And one of the things I'm going to do, and this is only going to make it tougher for me, and I've never said this before, but one of the things I'm gonna do, if I win, and I hope I do, and we're certainly leading, is I'm going to 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'll 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, which is there for other reasons, writes a hit piece we can sue them and win money instead of having no chance of winning because they are 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.
So we're going to open up those libel laws, folks, and we're gonna have people sue you like you've got sued before.
I left the preface about the Washington Post in there... because it is true. If anyone seriously believes that the Washington Post is going to editorialize against law or policy that helps Amazon or that it is going to seriously report on Amazon's business dealings in other than a derivative manner, call me, I have two NYC bridges and some Arizona beachfront property and a handful of degrees from Trump University that I want to unload. Likewise, the Las Vegas Review Journal is owned by gambling magnate... and Marco Rubio supporter... Sheldon Adelson. Rich men buying newspapers is not new and the First Amendment doesn't say that the only protected press is friendly and owned by people you like.
In the United States, suing public figures for libel is difficult as well it should be. The first step in totalitarianism is restricting what the press publishes to those things the regime agrees are true.
In a legal sense, "actual malice" has nothing to do with ill will or disliking someone and wishing him harm. Rather, courts have defined "actual malice" in the defamation context as publishing a statement while either
knowing that it is false; or
acting with reckless disregard for the statement's truth or falsity.
It should be noted that the actual malice standard focuses on the defendant's actual state of mind at the time of publication. Unlike the negligence standard discussed later in this section, the actual malice standard is not measured by what a reasonable person would have published or investigated prior to publication. Instead, the plaintiff must produce clear and convincing evidence that the defendant actually knew the information was false or entertained serious doubts as to the truth of his publication. In making this determination, a court will look for evidence of the defendant's state of mind at the time of publication and will likely examine the steps he took in researching, editing, and fact checking his work. It is generally not sufficient, however, for a plaintiff to merely show that the defendant didn't like her, failed to contact her for comment, knew she had denied the information, relied on a single biased source, or failed to correct the statement after publication.
Not surprisingly, this is a very difficult standard for a plaintiff to establish. Indeed, in only a handful of cases over the last decades have plaintiffs been successful in establishing the requisite actual malice to prove defamation.
Fortunately for all of us, the president can't do what Trump says. And he, himself, should be thankful. Otherwise anyone who carried his birther nonsense about either Barack Obama or Ted Cruz would be sued into oblivion. Likewise, Trump himself would have been personally liable for the incredible string of lies he churns out on his Twitter feed. But it does highlight yet another unpleasant tendency of Trump.
No matter how much the NYT or WaPo or the addled Lou Jacobson with his stupid little PolitiFact column irritate us we should never lose track of the fact that their own unending record of douchebaggery has reduced their own credibility to nil and we must keep in mind what campuses, and now Twitter, looks like with nice little Social Justice Warriors deciding what is the truth.
At his heart, Trump, like many CEOs and senior military officers, is a totalitarian. Where the military has internal brakes built in to check the worst of this impulse, business does not. And if you were a privileged rich kid with no sense of boundaries and grew into a privileged rich man with no sense of boundaries then the impulse is too strong to overcome.
His disregard for the way America culture, civil and political, has ordered itself over a couple of centuries is merely another sign of his progressive tendencies and why he poses many of the same threats to the Republic as did Barack Obama and as would Hillary Clinton.