Opinion: Intimidation as a way to kill the First Amendment
Published: 12-30-2024 6:00 AM |
Jonathan P. Baird lives in Wilmot.
Robust freedom of speech has been one of the greatest things about America. Mouthing off has been largely protected, whatever your political point of view. However, the scope of our First Amendment freedom is currently under threat like never before because of the actions of President-elect Trump and his MAGA movement.
The threat is about creating an atmosphere of intimidation so that people are afraid to exercise their freedoms. Fear can lead to inhibition and MAGA acts like a sledgehammer, trying to silence those in opposition to Trump policies. There are legal, political, and economic dimensions to the intimidation.
While it is not the most significant encroachment in the legal domain, I found Trump’s lawsuit against the Iowa pollster Ann Selzer telling. Trump is suing a well-known, much-respected pollster for the Des Moines Register for an election prediction that did not pan out. In a poll prediction, Selzer incorrectly believed Vice President Harris would do better than she ultimately did. Trump is arguing Selzer’s poll was “election interference.”
Suing a pollster for a wrong prediction has a chilling effect. Pollsters are in the business of prediction. That is what they do. Lawsuits like this have the effect of making a pollster never publish a prediction that would disfavor Trump. The price becomes too high and the effect is corrupting.
The Selzer lawsuit must be seen in the context of Trump’s broader effort to propagandize that journalists are “the enemy of the people” who deliver “fake news.” And it is not just virulent rhetoric deployed constantly at his rallies where he singles out and directs anger, distrust and hate at journalists.
Trump has filed a lawsuit against CBS for the way it edited Bill Whitaker’s 60 Minutes interview with Kamala Harris. He has also filed a defamation lawsuit against ABC for George Stephanopoulos’s reporting on his E. Jean Carroll sexual abuse conviction.
ABC settled the defamation case, paying Trump $15 million and $1 million in attorney fees plus tendering an apology even though they had strong legal arguments in defense of Stephanopoulos. Many legal observers saw it as ABC bending the knee and obeying in advance. ABC is not alone. Joe Scarborough, Mika Brzezinski, Jeff Bezos and Mark Zuckerberg have all tried to suck up, make nice and regain favor. Bezos and Zuckerberg each gave Trump inaugural $1 million gifts.
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Trump has called for punishing TV networks, including revoking their licenses to broadcast for coverage he deemed unfavorable. He also has called for prosecuting journalists. Trump doesn’t think criticism of his actions and policies should be protected speech. He wants to place the FCC under presidential authority. The president-elect is still suing Bob Woodward over audiotapes Woodward conducted with Trump for a 2020 book.
Northwestern Law Professor Heidi Kitrosser described Trump’s modus operandi: “He is going to punish people who dissent from his approach to things, people who criticize him and also, perhaps more importantly, investigative journalists and their sources who are not offering opinions but are exposing facts that he finds embarrassing and inconvenient.”
Free speech is reduced to freedom to agree with ‘dear leader.’ Instead of tolerance for a wide range of views, what is allowed speech, narrows. This is how authoritarianism operates. It shrinks the allowable discourse and makes people afraid of the consequences for voicing anti-Trump perspectives.
Trump files lawsuits more with the goal of harassment and grinding people down than the goal of winning. For media outlets without deep pockets, the cost of litigation alone can be devastating. Such lawsuits make publishers question whether critical reporting about public figures is worth it. The practice even has a name: SLAPP, short for Strategic Lawsuits Against Public Participation. The effect is self-censorship.
Trump’s lawsuits work to make him less accountable and when he wins, like with ABC, he is emboldened. What he is doing is a form of bullying to get the media to knuckle under and stop reporting critically.
Trump has been vocal about wanting to revise libel law. Under the U.S. Supreme Court decision in New York Times v. Sullivan, when someone makes a statement about a public figure regarding a matter of public concern, they can’t be sued for defamation unless they knew they made a false statement or they acted with “reckless disregard” for the truth. The current standard offers protection for journalists and Trump wants the precedent overruled so that it would be easier to sue news organizations and publishers.
Just the thought of Sullivan being overturned would send a shock wave through all of journalism. Fear of offending would dominate newsrooms and is greatly inhibiting. Money, especially in our current media environment, is always an issue.
Backing the legal and economic pressure is the sheer political thuggery of the MAGA movement. When things don’t go their way, we get January 6. Many examples come to mind, especially the harassment of people like Ruby Freeman, Shaye Moss, Mitt Romney, Judge Merchan, Liz Cheney, retired General Mark Milley, Rusty Bowers and all the election workers who wouldn’t go along with the Big Lie. All these people and many more have been subject to threats of violence.
There is no shortage of MAGA fanatics who will mindlessly and viciously jump whenever Trump tweets. They just need to be sicced on a target and many respond. Countless people have been harassed in a frightening way. Mitt Romney, who has had to spend a fortune on his own personal security against MAGA threats, revealed that many elected Republican senators were afraid to vote in favor of impeachment after January 6 because they were worried about physical violence from Trump supporters.
Authoritarianism and crony capitalism are incompatible with a vigorous First Amendment. Billionaires prefer dark money and no light shed on financial crimes. Students of history know that the First Amendment as we know it is relatively new, post-1960s. For much of American history, it was much reduced and we must worry that we are heading back to such a period. Maintaining and protecting the First Amendment is a big part of what the struggle ahead must be about.