Who will be the censor- in-chief in 2016?
Donald Trump wants Fox News fined by the FCC because Rich Lowry ably took him down a notch. Hillary Clinton is pushing to end most criticism of public officeholders by reversing Citizens United. And dear Lawrence Lessig wants to enact a massive welfare-for-politicians scheme with even tighter controls on citizen participation in politics.
Let’s get back to Trump. The Club for Growth recently ran an advertisement suggesting, to no one’s astonishment save Donald Trump, that candidate Trump is “just another politician.” With some gusto, Trump quickly issued a cease and desist letter against what it called the “pitiful little group,” claiming that its criticism of him amounted to defamation. Should the Club not back off its criticism, Trump calls for a “multi-million dollar lawsuit.”
Political defamation lawsuits are the ugly cousins of campaign finance reform. Campaign finance reform is a utopian dream that we can take the politics out of politics, but what “reform” really does is punish people for speaking, criticizing candidates, or shaking up the status quo. Both tactics make hazy promises about restoring the “integrity” of discussion or bringing “transparency,” but both can be too easily used as elaborate, deceitful techniques to repress speech.
Luckily America already witnessed the slimming down of defamation laws from the 1960s through the 1980s. In numerous cases, officeholders or powerful public figures sought to shut down national debate about important or controversial issues. In 1964, a Montgomery County, Alabama Commissioner sued the New York Times to halt its discussion about police abuse against minorities. Likewise, Jerry Falwell attempted to silence Hustler Magazine for running a distasteful comic about him.
In these cases, the Supreme Court realized that wide reaching laws that punish speakers for taking unpopular stances or criticizing the status quo couldn’t be squared with the First Amendment. Defamation was correctly narrowed so that individuals or newspapers criticizing powerful figures wouldn’t have to worry about “multi-million dollar” Trump-style lawsuits. Likewise, other legal techniques for evasively censoring speech were trimmed to be compatible with the First Amendment.
Defamation and other laws still have a place in our American legal landscape. When someone actually knows information is false, or should know, and is spreading it to really cause harm to another person, courts will intervene. As with most things, that category of cases is the exception, not the norm. For all other cases involving matters of opinion, questions about the character of an officeholder, or speech involving unpopular themes, the First Amendment reigns supreme.
This same sort of trimming down has been happening to modern campaign finance laws since their introduction in 1971. Campaign finance reform began with a theory much like defamation—that it could reach broadly into political debates and clean them up. But the Supreme Court saw it otherwise. Just five years after its introduction, the Court substantially narrowed the Federal Election Campaign Act. The only way rancorous political discussion can be “cleaned up” is through authoritative selection. And that just isn’t compatible with the First Amendment or the principles of a free society.
As we continue to rush headlong into the 2016 elections, one thing is clear—an open back-and-forth of ideas is a good thing. Discussions about foreign engagement or the character, or lack thereof, of candidates make for a better-informed electorate. One thing is for sure, censorship has no place in American democracy.