President Donald Trump is a menace to the First Amendment.
His hostility to the White House press corps and the non-right-wing news media is well documented.
But while being rude to reporters and reflexively shouting "fake news" are effective tactics to make his base even less inclined to believe anything negative about Trump, they're trivial concerns compared to the speech-chilling lawsuits filed by his reelection campaign against media outlets both big and small.
These petty lawsuits accusing various outlets of libel have little chance of success, but they will drain resources from media organizations who have published or aired opinions and ads that are critical of the president.
And they will serve as warnings to every organization that a deep-pocketed presidential campaign is willing and able to bring the pain.
Trump's reelection campaign has filed suit against CNN, The Washington Post, and The New York Times for publishing opinion pieces that they claim are libelous.
It "flies in the face of basic First Amendment doctrine," Theodore J. Boutrous Jr., a California lawyer who has worked on a number of high-profile free-speech cases, told The New York Times.
He added: "The complaint is attacking opinions where the authors are expressing their views based on widely reported facts."
Put simply, opinions are protected by the First Amendment. Even opinions that aren't 100% based in fact are protected by the First Amendment.
Libel, which requires "actual malice" that a deliberately false statement was published to hurt a person's reputation, is not protected by the First Amendment. And that's a good thing for Trump, because he's been well known to say patently false things about people with the intent of disparaging their reputations.
Trump's latest salvo in his war on free expression is a suit filed by his campaign against the small television station WFJW, a northern Wisconsin NBC affiliate. The station had been airing an ad produced by Priorities USA, one of the largest and well-funded pro-Democratic Party super PACs.
In the ad, titled "Exponential Threat," a series of Trump clips are played over ominous music. Early in the ad, two clips from two different Trump recordings are played back to back: "The coronavirus this is their new hoax."
In reality, Trump never directly called the coronavirus a "hoax." He did regularly downplay the danger it posed, likening it to the flu, and even opined that it would just miraculously disappear. Trump's "hoax" comment was a reference to the Democrats' failed attempt to remove him from office through impeachment.
To Trump, that was a "hoax," just as Democrats' criticism of his administration's response to the then burgeoning crisis was a "hoax." Is that dirty pool, or is that just politics?
"If this is the bar for what is a defamatory campaign ad then the vast majority of campaign ads are defamatory," Ken White, a California civil-liberties lawyer who blogs and tweets under the "Popehat" moniker, told Insider. White added: "Even arguably taking [words] out of context is absolutely routine. It is not a false statement of provable fact."
White says the Trump campaign's allegation of libel is a "nonsense argument" that is "performative" and "doesn't have much of a chance of succeeding in the long term."
But, he adds: "Even when a lawsuit is completely frivolous, it's ruinously expensive to defend. For most individuals and small businesses, it's completely impossible to afford. And even for a relatively moderate-sized business like a TV station, it can destroy it."
White thinks it's not a coincidence that the campaign chose to sue an individual TV station rather than the well-funded super PAC that produced it. He also thinks the fact that they chose Wisconsin, which Trump narrowly won in 2016, was strategic: Wisconsin has no anti-SLAPP law.
SLAPP Is an acronym for Strategic Lawsuits Against Public Participation. They are the lawsuit equivalent of censorship by intimidation. Anti-SLAPP laws which vary from state to state allow defendants to request a motion to dismiss a frivolous suit before it bleeds them financially dry.
To recap: The Trump campaign is ignoring the big-money super PAC and is instead going after a small TV station in a state where there are no protections against bogus lawsuits like this.
These cash-draining suits come at a time when an already struggling industry is bleeding even more jobs as a result of the coronavirus pandemic. And while major corporate media outlets like CNN, The Washington Post, and The New York Times have the resources to fight such suits, a small Midwestern TV affiliate surely does not.
Should this suit move forward in Wisconsin's legal system, it will send a chill up the spines of any modestly funded media outlet that wants to publish anything even a campaign ad that makes Trump look bad.
This goes beyond "fake news" insults; it is an intimidation tactic by the president designed to bring the media to heel by causing financial ruin in response to coverage he doesn't like.
There was an attempt at anti-SLAPP legislation at the federal level, the SPEAK FREE Act of 2015. While it had bipartisan support of 30 members of Congress, it wasn't enough for the bill to make it out of committee. But this is a worthy law for Congress to take up, because it defends the First Amendment from deep-pocketed bad-faith litigants.
No one, not even Trump, should be able to sue free speech into submission.
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