Malice

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States
-- Oath of Office, President of the United States

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.

-- Amendment I, Constitution of the United States of America.

Here we are.

Another day in America.

Another day that begins with Trump raging like a madman on social media – and then departing for another round of golf.

Another day when Trump again declares his fellow Americans and American institutions to be enemies of the people.

This has become our norm. Just another day in America.

Just another day when Donald Trump wipes his ass with the Constitution.

Look at that.

No, I mean it. Look at that.

You don’t even have to look carefully, it’s right out in open.

THE RIGGED AND CORRUPT MEDIA IS THE ENEMY OF THE PEOPLE!

Nothing funny about tired Saturday Night Live on Fake News NBC! Question is, how do the Networks get away with these total Republican hit jobs without retribution? Likewise for many other shows? Very unfair and should be looked into. This is the real Collusion!

Now, of course, when you protest, Trump himself says that he doesn't mean all the Press, just those he deems to be "fake news" and the implication is that Trump himself should be the sole arbiter of what constitutes truth.

The President of the United States of America is quite literally declaring this morning, again, that the oath he swore means nothing to him.

The President of the United States is literally saying that he considers the fundamental institutions of liberty and democracy to be a roadblock to his personal power and ambition -- which, of course, they are, exactly as they were designed to be – but Trump considers this to be a defect instead of the fundamental institution of our Republic.

By design, the President’s power is supposed to be restricted.

That’s what the presidential oath of office directly implies, that’s why it requires the office holder to preserve, protect, and defend the Constitution and not a political ideology, or the government, or even the country.

The fact that Trump does not understand this, is in point of fact utterly incapable of understanding this, is evident in every word he speaks and every action he takes from his assertion that the Press is the enemy of the people to his declaration of a national emergency to override congress and thus the will of those self same people.

When it comes to Speech and to the Press, the Constitution is quite specific: “…or abridging the freedom of speech, or of the press.”

There is no caveat on those rights, no qualifier, no restriction.

In point of fact, the Press is the only private enterprise whose rights are specifically enumerated in the Constitution. No qualification was placed on that freedom, none, not even the minimum caveat “being necessary to the security of a free State” as was placed upon the oh-so-sacred Second Amendment.

Nor was any such qualifier leveraged upon a citizen’s freedom of speech.

This is because the Press is the watchdog of liberty and the enemy of tyrants.

Now, an argument can certainly be made that the Press as an institution does not always, or perhaps not often, live up to that responsibility.

But the Press is not required to.

Again, the Constitution places no qualification or restriction upon the right. None.

The Press is free to publish articles at the highest levels of journalistic integrity or to print the alleged sexual escapades of popular entertainers. The Press is a private enterprise, a business – often (hopefully, if you work there) for profit – and so I’ll leave it as an exercise to the reader which type of story actually sells more newspapers or garners a higher number of viewers on TV and the Internet. Fox News is popular with the right, because it tells conservatives what they want to hear. It’s the same everywhere else. The National Enquirer publishes stories of space alien babies, claims Supreme Court Justice Antonin Scalia was murdered by a hooker, or names Hillary Clinton’s Secret Lesbian Lovers, because that’s what Americans want to read. Sex sells. Violence sells. Conspiracy sells. This is less a condemnation of the Press, and more a statement on human nature. Alex Jones isn’t popular because he’s talented or attractive or sane, he’s popular because he entertains the lunatic fringe – which isn’t so far out on the fringe any more. Sean Hannity, Glenn Beck, Ann Coulter, these people aren’t “journalists” in any professional sense, but the Constitution doesn’t require any particular credentials to call yourself such.

Because the Press is a private enterprise, for profit, we get the Press that we want.

We get the the Press that sells.

We get the Press we deserve -- just like government.

The Framers, the men who wrote the Constitution, they knew this.

The Press was no different in their day and in fact it was even more lurid, more prone to titillation and hyperbole, and more free of fact than it is nowadays. And yet – and yet – they granted the Press unqualified freedom, the only such institution called out and given enumerated rights in the Constitution.

This is also true, the unrestricted part anyway, of Freedom of Speech.

Because despite the many drawbacks of a for-profit press and an unruly and mouthy population, liberty cannot exist without such unrestricted freedoms.

What?

What’s that?

Oh. I see. You have a problem with the qualifier.

Those rights are not “unrestricted,” you say? You can’t shout “Fire!” in a crowded movie theater, for example. Our rights, Freedom of Speech, Freedom of the Press, these rights are not unrestricted.

This is true.

But it’s also wrong.

See, you can shout “Fire!” in a crowded theater (or in a more modern example, “gun!”). You can. But you’re responsible – at least in part – for what happens next. We have laws prohibiting the incitement of public panic (called “Inducing Panic Laws”). Conversely if there actually is a fire, or a gun, and you don’t sound the alarm, you can be held liable for failure to warn people. Now, Failure To Warn in a case like this is not particularly common, it’s more for cases involving large companies with defective or harmful products, but does happen at the personal level and is likely to increase (see cases involving mass shootings where people knew or had reason to suspect the shooter’s intent prior to the act. Particularly in school shootings involving teen perpetrators).

Likewise, the Press can be held accountable for publishing deliberately malicious information.

In fact, there’s an entire branch of law dedicated to such, and ironically it involves a common target of Trump’s ire: The New York Times.

At the height of the Civil Rights era, The New York Times published an article – a full-page advertisement really, paid for by The Committee to Defend Martin Luther King and the Struggle for Freedom In The South. The Public Safety Commissioner of Montgomery, Alabama, one L. B. Sullivan, was incensed by what he called called inaccuracies – what Trump would today call “Fake News” – and he took it personally. He demanded the Times print a retraction.

The Times refused.

The Governor of Alabama then demanded a retraction and this time the Times complied, citing new information and that the intention hadn’t been to defame Alabama the state.

Sullivan was not mollified. He felt his character had been libeled and he sued in Alabama state court.

Unsurprisingly, for the time, he won.

He was awarded $500,000 by the Alabama state trial court and the Alabama Supreme Court declared “The First Amendment of the U.S. Constitution does not protect libelous publications.”

So the New York Times appealed the case to the US Supreme Court.

In 1964, the Supreme Court of the United States decided New York Times Co. v. Sullivan in favor of the New York Times unanimously. 

Justice William J. Brennan, writing the Court’s opinion, cited a previous case:

Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375-376, gave the principle its classic formulation:

Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

New York Times Co. v. Sullivan is a landmark.

The Supreme Court established the Actual Malice Standard, it is one of the key decisions guaranteeing Freedom of the Press, and was made specifically to ensure that public officials could not use the courts to stifle freedom of speech or to suppress political criticism.

Without this protection, the South could have prevented the Press from reporting on police brutality and government abuses during the Civil Rights Movement. Without this protection, Nixon could have used the courts to suppress reports of his chicanery as libelous to himself.  Reagan could have tried to hide the Iran-Contra Affair for the same reason. Or Bill Clinton could have tried to sue the Press to hide his affair.

The press is not free to engage in willful libel or malice.

But there is a significant difference between libel and a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

That, that right there, is what the President of the United States swears an oath to preserve, protect and defend. That.

The Constitution places no qualification on Freedom of Speech or Freedom of the Press. With great, great care and deliberation, the Court does.

This is the Judicial Branch’s Constitutional duty. Not the Executive’s.

It is not within the President’s power to decide what constitutes Freedom of Speech or Freedom of the Press.

It is not within the President’s power to decide truth for the American people.

Nor is it within the President’s power to declare the fundamental institutions of our Republic as enemies of the people.

The President is sworn to uphold the Constitution as interpreted by the Supreme Court: I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

That is the limit of his power.

That.

No more.

No less.

The Constitution was not written to place restrictions upon liberty.

The Constitution was very specifically written to place restrictions upon the President.

The very fact that Donald Trump does not, will not, can not, acknowledge this makes him fundamentally unqualified for the office.

It is much easier to pull down a government, in such a conjuncture of affairs as we have seen, than to build up, at such a season as the present.
— John Adams, letter to James Warren, 1787