The First Amendment appears to be on the wrong side of history, to borrow a favorite phrase of President Obama.
The presidential front-runners in both parties are openly antagonistic towards the freedom of the press and the freedom of political speech. They’re not hiding it.
Donald Trump has repeatedly promised that he would “open up” libel laws to make it easier for public figures like himself to go after journalists. Hillary Clinton, meanwhile, has promised to amend the Constitution so as to curtail free speech as it pertains to politicians — specifically citing the non-profit groups that criticize her.
Against the backdrop of campus radicals across the country demanding the silencing of “hate speech,” Trump’s and Clinton’s war on the First Amendment is cause for worry.
Trump’s libel argument is a bit confusing, thanks to Trump’s cluttered, inchoate speaking style. But he’s expressed his desire to curb press freedom repeatedly, in many contexts.
Under current law, a journalist can be sued for libel if he maliciously lies about a public figure or reports something false, recklessly and out of malice. For non-public figures, the threshold is lower. Trump thinks this is too lenient, judging by his 2016 promises and his past behavior (he sued a reporter who reported facts contradicting Trump’s claims about his own wealth).
Does Trump object to the legal requirement for malice? Or does he object to the fact that truth is a defense — that Trump can’t sue a reporter who reports true but critical things?
Clinton’s planned pruning of the First Amendment doesn’t affect the freedom of the press. She may believe her skill at avoiding reporters and skirting open-records laws will carry her in that regard. Instead, Clinton plans to weaken the First Amendment’s freedom of political speech. And she’s crystal clear on why she wants to do this.
Clinton on Monday repeated her call for a constitutional amendment to overturn the 2010 Supreme Court case Citizens United, which struck down part of the 2001 McCain-Feingold campaign finance regulations. “People forget this,” Clinton said Monday, “but the Citizens United case actually began with yet another right-wing attack on me.”
This context Clinton provides is crucial. Clinton will talk a lot about how “money isn’t speech,” and “corporations aren’t people,” but she always comes back to the “right-wing attack on me.” Clinton’s problem with Citizens United and with the First Amendment is that it allows people to pool their money in order to criticize politicians around election time. Her constitutional amendment would criminalize such criticism in many cases.
Citizens United, a conservative nonprofit, released “Hillary: The Movie,” early in the 2008 cycle. It was a 90-minute polemic against the Democratic front-runner that screened in some theaters and was available on DVD. They wanted to run 30-second ads promoting the on-demand Hillary.
McCain-Feingold would have banned the on-demand viewing and the ads, which would have been “electioneering communications,” defined as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” made within 30 days of a primary or 60 days of a general election.
A lower court ruled that the video was “susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.”
Hillary thinks this is right, that federal law should ban movies funded by corporations (which is to say, nearly all movies) that criticize the front-runner for President.
Could this law “allow the banning of a book if it’s published by a corporation?” Justice Sam Alito asked during oral arguments.
“If the book contained the functional equivalent of express advocacy,” then yes, said Obama’s Deputy Solicitor General Malcolm Stewart.
Of course, McCain-Feingold and the Democrats’ post-2010 attempts to limit political speech wouldn’t limit the freedom of the press — they all have media exemptions. So when Hillary Clinton argues that the freedom of speech doesn’t apply to people acting together, through a corporation, she isn’t including all corporations. Non-profit groups like National Right to Life and the Sierra Club would lose their right to criticize politicians close to an election, while for-profit corporations such as NBC and the New York Times Corporation would keep theirs.
Clinton has many reasons to want to curb political speech by “outside groups.” Mostly because she wants to empower the inside groups — the parties, the lobbyists, the incumbent politicians, the Beltway fundraisers, the revolving-door officials — because she is the ultimate insider. Empowering the insider network enriches Hillary and her friends, and it keeps outside groups from communicating to voters what the politicians are doing.
Donald Trump, who benefits from his own wealth and unprecedented billions in free coverage from cable TV, also hates the outside groups, and he wants them gone. (Not for the last time, we see here that Clinton’s illiberal and self-serving positions would be made moot by Trump’s nomination, because he shares them them.)
Neither Trump nor Hillary has much use for the First Amendment. People hungry for power rarely do.
Timothy P. Carney, the Washington Examiner’s senior political columnist, can be contacted at [email protected]. His column appears Tuesday and Thursday nights on washingtonexaminer.com.
