President Trump & The First Amendment

NBC News recently reported that President Trump told his military advisors he wants a “tenfold increase” in the nation’s arsenal of nuclear weapons. This morning, the President responded by tweeting the following:

With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!

Let’s assume that the President is right and there is no truth to the story. His question, stated more accurately, is: “Can the government punish a news outlet for publishing false information about a government official?”

The answer is found in the landmark U.S. Supreme Court case New York Times Co. v. Sullivan, which has roots right here in Alabama. In 1960, one of the Commissioners for the City of Montgomery sued the New York Times for libel: the Times had run an advertisement which criticized city officials for harassing Martin Luther King, Jr. and other civil rights demonstrators.

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The Court overturned the Commissioner's verdict, holding that the government can’t punish a news outlet for publishing false information unless it proves that the outlet acted with “actual malice.” To do this, the government would need evidence that the publication knew or should have known that the information was false before it was published. “Actual malice” is a difficult, nearly impossible burden of proof, and the Commissioner couldn’t meet it.

The Court’s decision was based, of course, on the Constitution. As most of us learned in grade school, the First Amendment prohibits the government from “abridging the freedom of speech, or of the press.” Criticism of government officials is a fundamental part of these freedoms, which are critical to the functioning of our democracy. Therefore, citizens and publications must have broad liberty to express their ideas and opinions about government officials without the fear of government-imposed punishment.

Coming back to the Trump-NBC spat, it’s obvious that there is no “actual malice” here. NBC cited three sources, all officials who were in the room at the time. In fact, there’s not really any reason to believe that the report is false at all; less than a year ago the President publicly said that the country should “greatly strengthen and expand its nuclear capability.” There’s no real reason to even consider the unconstitutional action he is proposing.

But let’s look at the big picture. The First Amendment is the very heart of our freedoms; it is what makes America special. When we stand for the flag, we’re not just honoring a group of people or a certain geographical area, we’re honoring the ideas that bind us together: namely, the beliefs that the people should govern themselves, and that they should be free to speak and worship as they please. These ideas are the reason for the First Amendment; they are America itself.

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So when the President publicly discusses violating the First Amendment because he’s upset by critical news coverage, we have a real problem. There are only two possibilities: either the President is ignorant of the First Amendment’s meaning, or he is so offended by NBC’s coverage that he doesn’t care.

Hopefully it’s the former, because being criticized is part of public service in a democracy. That’s why, in Sullivan, the Supreme Court noted that we want our public officials to be “men of fortitude, able to thrive in a hardy environment.” If you want to hold power and never be criticized, you’ve got the wrong country. You might find yourself more comfortable in a monarchy or dictatorship.

Put another way, our forty-fifth president should take a lesson from the words of the thirty-third: if you can’t take the heat, get out of the kitchen.