The idea that free speech is in some way of great benefit to society is a relatively new concept. For most of human history, conventional wisdom suggested that allowing people to speak their mind would lead to chaos, to a breakdown of society even.
From the early modern period onward, limits on speech were governed by two great sweeping legal maxims; blasphemy and seditious libel.
The former encouraged writers to publish works posthumously, as was the case with Nicolaus Copernicus‘ De revolutionibus orbium coelestium — which suggested that the Sun lay at the center of the solar system — and Immanuel Kant’s Religion within the Boundaries of Mere Reason — which argued that God was unknowable.
Meanwhile, secular writers who wished to critique the government of the day were forced to resort to Swiftian satire, or else hide behind the anonymity of nom du plume such as Thomas Paine’s Curioso.
The U.S. was of course, way ahead of the curve on all this.
First Among Unequals
The First Amendment, along with the rest of the Bill of Rights, was adopted on December 15, 1791.
Not that such freedoms were absolute; it was still the 18th century after all. The Sedition Act of 1798 was quite clear on matters relating to the writing, printing, publishing or uttering of any ‘false, scandalous and malicious,’ words against the government. Still, the seeds had been sown. By the late 20th century, two landmark Supreme Court hearings had immediate effect upon the relative value of seditious libel.
In 1969 in The Brandenburg v. Ohio the court concluded that the government was not permitted to punish inflammatory speech unless that speech was directed to inciting or producing imminent lawless action.
So much for sedition then.
In 1984, Falwell v. Flint established that the right to lampoon those who chose to put themselves in the public eye outweighed any sense of indignation that might be felt by the person being mocked.
So, so much for libel
Rebel Without A Cause Célèbre
Such rulings made it clear that fame is no protector of tender sensibilities. Far from it. Being famous makes one more vulnerable to mockery, the occasional jibe or the odd exclusive exposé.
For some of America’s elite, the idea that the 1st amendment allowed common plebs to act against their interests was just too much. Take now defunct hard-hitting news site Gawker for example.
The site was hit by a $140 million lawsuit that was filed by Hulk Hogan but bankrolled – at least in part – by billionaire PayPal founder Peter Thiel.
Gawker’s decision to publish an article discussing Pay Pal founder Peter Thiel’s sexuality might have been protected by the constitution but it was still subject to the asymmetrical financial power of Thiel’s empire. Unable to attack the site directly, Thiel bided his time, using Hogan’s suit as a proxy vehicle to wreak vengeance from afar.
It was an ominous portent of things to come, a direct attack on free speech itself. The site’s feature’s editor, Tom Scocca saw with great clarity what had just occurred. In his final Gawker post, he signed off with a sentiment that cut to the heart of the issue:
“A lie with a billion dollars behind it is stronger than the truth.”
And all this happened before President Donald Trump even took office.
The Unusual Suspects
Trump’s hatred of the media is well documented. His official stance seems to be that anything complimentary said towards him is the epitome of honesty. Negative coverage, on the other hand, is to be viewed with contempt.
It’s worthless, fake.
He’s not alone in such opinion.
Peter Thiel is a staunch supporter of the President and his war on press freedom. Disgraced Former CEO of Fox News and close Trump confidant Roger Ailes hired the very same lawyer who took down Gawker to help defend him from a sexual harassment suit lodged by Gretchen Carlson.
And then there’s special adviser to the President, pretend-genius Jared Kushner, a man who despite having purchased his own pet newspaper — The Observer — has a healthy disdain for the media.
Indeed according to a former Observer editor, Jared:
“Hates reporters and the press. Viscerally.”
He apparently doesn’t even like to read his own paper, In an interview with the New Yorker he whined that:
“I found the paper unbearable to read, it was like homework.”
And we all know Jared doesn’t like to do homework. Why else would his daddy have to buy him a Harvard Law degree?
First The Worst
So it comes as no surprise that an attack on the First Amendment rides high on Trump’s to do list.
Having set his sights on destroying the EPA, dismantling Obamacare and giving himself a massive tax cut, he has now turned his somewhat limited attention span to the constitution itself.
In a recent exchange between ABC’s Jonathan Karl and White House Chief of Staff Reince Priebus, there was little doubt as to how far Trump and his cadre of thin-skinned autocrats were willing to go.
When asked if the President should be able to sue the New York Times for stories he doesn’t like, Priebus offered a telling response:
“Here’s what I think. I think that newspapers and news agencies need to be more responsible with how they report the news.”
Karl interrupted:
“I don’t think anybody would disagree with that. It’s about whether or not the President should have a right to sue them.”
Which prompted this response from Priebus:
“And I already answered the question. I said this is something that is being looked at. But it’s something that as far as how it gets executed, where we go with it, that’s another issue.”
Liar, Liar, Constitution On Fire
All of which cuts to the heart of the matter. With Supreme Court decision such as Falwell v, Flint still standing, there’s really only one way that the President could possibly achieve his goal of being able to sue anyone who wrote a story he did not like.
Via a constitutional amendment that either alters the wording of the 1st amendment or else abolishes it all together. Karl asked:
“Is that what you want?”
Priebus’ response was short and to the point. It should send chills down the spine of every American, regardless of political allegiance. He answered:
“Yes it is,”
Which brings a certain urgency to the concept of resisting, no?
Because if Trump had already gotten his way then pretty much everything you just read would never have been written. Forget that every word is true. Forget that it’s all been backed up by citations. Under a revised constitution, it would all be libel.
And seditious libel at that.
Watch the full exchange here:
Featured Image: Screenshot Via YouTube Video.
