
Trump on Free Speech and Freedom of the Press - DiabloD3
https://www.eff.org/deeplinks/2016/12/trump-free-speech-and-freedom-press
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wahern
Trump can't do anything to change libel law, at least not to his benefit as
president.

First of all, libel is a creature of state law. There's no federal libel claim
AFAIK, and arguably defamation is one of the few areas that Congress would
find difficult to legislate without running afoul of the limits of federal
powers.

Second, well-established constitutional law sets an extremely high bar for a
politician or other public figure to prove defamation--they have to show
malicious intent. This bar is so high that any lawyer could get it thrown out
of court with minimal cost and time. While Trump the private citizen had some
success with nuisance suits, he'd have little success as president. Indeed, I
wouldn't be surprised if state bars investigated any lawyer who tried to file
a series of such nuisance claims.

And if somebody was maliciously defaming Trump, we shouldn't have many qualms
about them being held accountable. They'd only be committing the same sins
Trump has and will continue to commit; sins which disrupt our capability to
carry out reasonable political discourse. If Trump managed to win such a case,
he'd only be encouraging the floodgates to suits against himself and people
like him. Given the reality of his ascendency, I think that's something I
could live with.

~~~
DiabloD3
Still, the EFF is spooked about Trump becoming President; and I consider them
knowledgeable and logical lawyers for the most part.

~~~
wahern
FWIW, I contribute to the EFF and support its mission. But the EFF is not in
the business of dispensing legal advice to the public. They're in the business
of lobbying, and they're not above hyperbole. Neither, for that matter, are
celebrity lawyers from Stanford, Harvard, etc.

That's a lesson I learned the hard way when following Lawrence Lessig's SCOTUS
challenge to copyright term extension. Lawrence Lessig, Eben Moglen, and the
whole cast of lawyer-philosophers in the open source community made it sound
like a slam dunk. But they were rebuked by every court. It was only in
retrospect that I understood that their public discourse was part of a
strategic, if not tactical, legal and intellectual offensive. They are trained
as lawyers, afterall. Lawyers make it habit to argue their points with
commitment, and they're careful not to offer counter-arguments, or to
otherwise qualify their message, except as required in their briefings to the
court. I have no doubt they sincerely believed that the law _should_ be as
they claimed; but undoubtedly they did or would have heavily qualified their
claims to their actual clients.

A charitable interpretation of the EFF's point about Trump's history regarding
defamation suits is that the history characterizes Trump's tolerance of
criticism and his commitment to free speech more generally; and that it's
suggestive of his policy preferences regarding other free speech issues that
he can actually substantively influence. Thus the implication that his
nuisance-suit history is consistent with his dismissive and antagonistic
attitude toward the White House press corps.

The less charitable viewpoint is that the EFF is fear mongering. People
unfamiliar with the law easily read that article as implying Trump could
change libel law, or that he could abuse it as easily as he has previously.

I think both interpretations are likely. The article is carefully worded to be
consonant with the law as widely understood, while allowing lay readers to
draw conclusions which, helpfully, add to their sense of urgency and anxiety
about Trump's administration and their willingness to support the EFF.

~~~
DiabloD3
I interpreted it differently. The reason the Lessig et al. lost is because too
much money is involved in keeping the status quo.

I agree that they try to paint their story their way, but I also agree with
their interpretation of what's going on. Any change of any law that moves the
US to a less free state needs to be blocked in every way. If this means even a
1% chance of him changing libel law, or a 1% chance of him trying to destroy
net neutrality, or a 1% chance of anything the EFF has claimed he might try to
do, that is 1% too much.

