First Person

Donald Trump’s twisted view of the First Amendment

October 28, 2015

Donald Trump, tyrant of the media, seems to relish blacklisting its members on a whim. Last week, he barred journalists from Univision and Fusion from one of his events. At various other times, it’s been the Des Moines Register, or the Huffington Post or whatever news outlet that may have printed something that Trump didn’t like. All of which makes it a good time to ask ourselves: What exactly does this possible Republican presidential nominee think of free speech? As with many of his views, this one is detached from reality.

We got a telling look at his First Amendment interpretation shortly after his notorious comments equating Mexicans with “rapists” and Univision’s subsequent decision to pull the plug on his Miss Universe pageant. Trump’s camp said the Univision decision didn’t result from the candidate’s comments on Mexicans, but was a “politically motivated attempt to suppress Mr. Trump’s freedom of speech under the First Amendment.”

So that’s where we’re starting from: In Trump’s world, broadcasting his beauty pageant on a private television station is a First Amendment right, and taking it away from him because he said something offensive is an affront to the Constitution. What about everyone else’s rights? As you may have guessed, that’s an entirely different story.

Trump has threatened to sue at least two major news outlets for defamation so far this campaign (and those are just the ones who have made public the threats). When the Daily Beast reported Trump’s “ex-wife Ivana Trump once used ‘rape’ to describe an incident between them in 1989,” the full response from Trump lawyer Michael Cohen as quoted by the Daily Beast, would normally be hard to believe, except for the fact that we’ve now become so accustomed to Trump’s cartoon world:

“I will make sure that you and I meet one day while we’re in the courthouse. And I will take you for every penny you still don’t have. And I will come after your Daily Beast and everybody else that you possibly know,” Cohen said. “So I’m warning you, tread very fucking lightly, because what I’m going to do to you is going to be fucking disgusting. You understand me?” “You write a story that has Mr. Trump’s name in it, with the word ‘rape,’ and I’m going to mess your life up …  for as long as you’re on this frickin’ planet …  you’re going to have judgments against you, so much money, you’ll never know how to get out from underneath it,” he added.

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Earlier this month, Team Trump was directing its ire toward the Washington Post just as the paper was preparing to publish an investigation showing that, contrary to public statements made by Trump campaign manager Corey Lewandowski, Trump had strong ties to a SuperPAC. Lewandowski “threatened to file a lawsuit if The Washington Post reported that Trump had given the group his blessing,” the Post reported. (They published their story anyway.)

Trump has tried to wield his censorship powers against many others besides journalists. He sent a cease and desist letter (a Trump speciality) to an anti-Trump website called for trademark infringement because “As I am sure you are aware, the Trump (R) name is internationally known and famous as a result of Mr. Trump’s long, extensive, and high-profile business and entertainment related activities.” Apparently he thinks that, by trademarking his own name, he can immunize himself from criticism. That’s ludicrous by any reading of the law, but who knows how many people he’s scared into compliance.

His political enemies receive much the same treatment: He threatened to sue the conservative anti-tax organization Club for Growth for running a political ad in which they quoted Trump from a time when his views were supposedly different than they are now. When conservative commentator Rich Lowry irked Trump in a segment on Fox News, he tweeted afterwards that Lowry “should not be allowed on TV and the FCC should fine him!” Under what authority could the FCC fine a political commentator on a cable news program? Trump did not mention, but he’s never been one to care much for legal details.

While Trump hasn’t actually sued anyone for libel in this campaign yet (he’s sued multiple media organizations for breach of contract), The Donald did sue a reporter in 2006. Timothy O’Brien, now the executive editor of Bloomberg View, wrote a book quoting sources who said Trump’s net worth was less than he claims it is. (Note: Just about everyone in 2015 says Trump’s net worth is less than he thinks it is.)

As Eric Gardner reported at the time, Trump’s lawyers asserted that his then net worth of $7 billion was “conclusively proven” and O’Brien had to have known that, but also answered in the affirmative when asked whether it was really true that his “net worth goes up and down based upon [his] own feelings.” Trump’s own words:

“Yes, even my own feelings, as to where the world is, where the world is going, and that can change rapidly from day to day. Then you have a September 11th, and you don’t feel so good about yourself and you don’t feel so good about the world and you don’t feel so good about New York City. Then you have a year later, and the city is as hot as a pistol. Even months after that it was a different feeling. So yeah, even my own feelings affect my value to myself.”

He lost decisively in both the lower court and on appeal.

“Essentially the judge just said ‘Trump is too famous,'” Trump complained to The Atlantic at the time. ” ‘He’s so famous that you’re allowed to say anything you want about him.’ Well, I disagree with that.”

Of course that’s not what the judge said. He merely said Trump was a public figure and had to abide by the same standard to win a defamation lawsuit that every other public figure does. In this case, that meant proving that the person you’re accusing of defamation did so knowing that the information they published was false or recklessly tried to avoid learning the truth. The Supreme Court established this over 50 years ago in New York Times v. Sullivan and has re-enforced it through subsequent cases. It’s largely because of these decisions that news organizations can ignore Trump’s ludicrous threats rather than have their coverage restricted by them.

Yet those same standards allow Trump to hurl insults at celebrities and politicians alike from his Twitter account. They are the same reason he continually seems to pluck “facts” out of thin air without fearing legal repercussions. (The First Amendment, by the way, is also the only thing keeping Trump’s lucrative contracts with the City of New York from being rescinded after his Mexican “rapist” comments.)

More than any other candidate, the First Amendment has enabled Donald Trump to flourish. Yet by all indications, if he ever gets into office, he’ll do everything in his power to tear it down.

Trevor Timm is the executive director of Freedom of the Press Foundation, a non-profit organization that supports and defends journalism dedicated to transparency and accountability. He is also a twice-weekly columnist for the Guardian, where he writes about privacy, national security, and the media.