The First Forever

Dr. Malcolm Cross
Dr. Malcolm Cross

In this most dismal of election years the remarks of the major presidential candidates should have, by now, raised concerns about the survival of one of the most important guarantors of our freedom—the First Amendment to the Constitution of the United States–which says:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Of course, the rights listed in the First Amendment are always under assault from someone, somewhere.  Attempts by the government to make faith-based organizations provide birth control for those whose lifestyles make conception impossible, efforts to block gay marriage, efforts to persecute vendors of wedding-related products and services for refusing to cater to same sex weddings, and the assaults on free speech by politically correct coddled crybabies at major universities are but a few examples on the war against the First Amendment.  But perhaps the most dangerous, if least noted, are the threats to the First Amendment presented by Donald Trump and Hillary Clinton.  After all, one of these two will be elected the next President of the United States.

Donald Trump wants to change the law to make it easier for politicians to win slander and libel suits against the news media.  Current law and Supreme Court cases make it quite difficult for a politician to win a libel case.  To do so he must not only prove that he was hurt by incorrect statements, but he must also prove that the false statements were made with actual malice or extreme negligence and disregard for the facts.  Trump apparently would like to require only that the offending statements were false, without having to prove the state of mind of those who made them.

Now I must admit that having been on the receiving end of the campaign waged by the local “newspaper” against those associated with Tarleton in the 2014 city council election, the Donald’s ideas elicit certain revenge phantasies on my part.  Yet his critics make a major point as well.  To make it easier to win a libel suit would potentially encourage more politicians to file more suits, and require the defendant media organizations to spend more money to defend them.  The very threat of having to defend itself against a libel suit might discourage a newspaper, a TV station, or some other media outlet from producing a story for fear of offending its subject.  The candor and vigor with which issues should be publicly debated in the media would be weakened as the news media are scared into silence.

The Donald has been accused of wanting to weaken the libel laws to make it easier for him to punish media outlets which he believes have treated him unfairly.  The same could be said for Hillary Clinton, whose assaults on the Supreme Court’s Citizens United decision could likewise weaken freedom of speech, the press, and assembly.

Citizens United is a conservative interest group which during the 2004 presidential campaign had filed a complaint with the Federal Election Commission to have it ban advertising for Michael Moore’s anti-Bush film, Fahrenheit 911, claiming that expenditures on advertisements for Moore’s film constituted corporate political expenditures illegal under the McCain-Feingold campaign finance reform act of 2002.  The FEC ruled that Moore’s advertising was in support of a legitimate commercial venture and was protected by the First Amendment and exempt from McCain-Feingold.

Using that logic Citizens United tried, in 2007, to present itself as a commercial filmmaker and win FEC approval for advertising its own Hillary:  The Movie, a film produced to undermine its subject’s 2008 presidential campaign.  The FEC refused, citing, McCain-Feingold limits on corporate expenditures for political speech.  But in 2010 the Supreme Court ruled the relevant parts of McCain-Feingold unconstitutional, saying corporations and labor unions had the right, under the First Amendment, to spend as much of their own funds as they wanted on political speech as long as their expenditures were not coordinated with those of candidates spending on their own behalf.

It is left to the reader to imagine the precise relationship between Citizens United’s anti-Clinton activities and Hillary Clinton’s support for reducing its freedom to conduct them.  Yet the pattern seems clear:  Both Trump and Clinton would limit the freedom to speak, write, or assemble against them.  The danger each candidate’s ideas present to American democracy should be obvious:  The easier we make it to punish one who criticizes Donald Trump or Hillary Clinton, the easier we make it to punish someone for being critical of anyone or anything else.  And someday someone far worse than either Trump or Clinton could come to power and thereby inflict far more damage on America than either of these two can–and we’ll lack the freedom to stand up and speak out.

Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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