On the Ballot: Free Speech and Press

Vote for president as though your free speech and press depend on it.

The next president will tilt the Supreme Court conservative/liberal balance. 

She or he next might nominate four of the nine justices, given the current justices’ ages. There could be more nominations if the court has another unexpected death or retirement. 

Justices serve for generations, and a “Trump Court” could limit or reverse free speech and free press protections we’ve taken for granted for the past half century. 

A “Clinton Court” probably would embrace a liberal, expansive approach to civil and personal rights, including First Amendment protections for speech and press. 

As Barack Obama famously reminded Republican Whip Eric Cantor after inauguration in 2009, “Elections have consequences, and at the end of the day, I won.” It cuts both ways. 

Journalists focus on whether Obama’s nominee for the existing vacancy — federal judge Merrick Garland — finally will be confirmed before Inauguration on Jan. 20.  

Commentators suggest Mitch McConnell will let the Republican Senate vote on confirmation lest a victorious Clinton name a more liberal judge to replace the famously conservative Antonin Scalia.  

National news media largely have ignored the implications of court nominations in pursuit of more sensational campaign stories. 

That failure is just one reason that Election 2016 shouldn’t be remembered by the news media with pride. Too many of our tribe performed their quadrennial rites as usual while averring how unusual the campaign is.

In part, this reflects mainstream news media’s willingness to allow Trump to dominate the 24/7 news cycle to the exclusion of thoughtful discussion of issues and the relevance of candidates’ proposals. 

Almost as feverish are attempts by most major news organizations to “balance” their coverage of Trump and Clinton. Only recently has some begun to use the word “lie,” meaning Trump knows what he’s saying is not true.

I can’t remember when following the news — content and predictability — was so dispiriting. Some days, I didn’t want to read, watch or listen.

Maybe national news media are catching on, but two serious stories remain to be taken seriously: 

• Trump’s continuing assault on the legitimacy of our elections

• Trump’s assault on Americans’ understanding of our Constitutional rights

As Whiner-in-Chief, Trump cried “rigged” as a pre-emptive challenge in state primaries. Now, he’s claiming the national ballot is rigged. 

This is worse than GOP efforts to suppress votes where minorities favor Democrats. Trump’s attack on ballot integrity confirms supporters’ embrace of anti-government conspiracies. 

What should be fatal to his claims is Trump’s failure to explain how state voting has been or can be rigged. Call it an example of his evidence deficit or “act-free universe.”

Win or lose on Nov. 8, his incessant emphasis on “rigged” will remain a persistent, low-grade infection among supporters who already distrust our political system, elected national officials and news media. 

“Rigged” isn’t a throwaway line. Like “birther,” it’s essential to his candidacy and his assurance that he alone will sort out our political mess. 

Meanwhile, journalists continue to let his “rigged”  claims slide as, “Oh, it’s just Trump.”

That’s because the political class — including many reporters and editors — initially treated Trump as a clown, enlivening the GOP primaries. At huffingtonpost.com, editors moved Trump from politics to entertainment. When they recognized the inevitability of his nomination, they returned Trump to politics pages. 

Such jaded response reflects low expectations which freed Trump from primary scrutiny more familiar to other candidates. 

If anything is rigged, it’s coverage of Trump. Until his videotaped bragging about criminal sexual assault, national news media stenographically reported every Trump dog whistle, posturing insult, boast, lie, misrepresentation and exaggeration with devotion otherwise reserved for Kardashian butts and nipples.

National reporters were Trump’s useful idiots, happily manipulated so long as he drew readers and viewers. Building audiences and ad revenues is the media’s business; getting elected is Trump’s. 

Along the way, slavish Trump coverage provided free airtime worth at least $2 billion if he’d paid ad rates. 

As he said, he’s a star.

A second big story that the national news media underreport is Trump’s contempt for the rule of law and Constitutional protections for speech and press.  

If elected, Trump says he’ll prosecute and imprison Clinton for her private email server while secretary of state. “Lock Her Up!” remains a call-and-response at his rallies. 

Trump doesn’t understand our rule of law — greater than any president — or our tradition of peaceful transfer of power. Our new presidents don’t jail losers. 

In the same way, constitutional protections of our rights would suffer if Trump is elected and names fellow-traveling Supreme Court justices.

A classic example of his contempt for free speech is Trump encouraging violence against protesters at his primary rallies. This provided great soundbites and videos, but too few reporters explained how this stoked supporters’ anger.  

Journalists began to appreciate how dangerous Trump is when he began to ban some of them from his events, physically corralling those he let in, and threatening or encouraging violence against reporters and photographers/videographers. 

We saw it again in Cincinnati. Look at the hate and anger in his voters’ faces in Enquirer images.

Over the past year, Trump promised supporters that they’d have even greater freedom to intimidate journalists and suppress critical speech and news media when he’s elected. 

Now, he says, the election will be stolen by a Vast Leftwing Conspiracy of the Clintons, news media and mysterious international bankers (dog whistle for “Jews”).

It was be foolish to dismiss this as another whine by a terminally narcissistic egotist. 

Part of his war on the free press and speech involves Trump’s promise to ease the filing of libel suits against critics, irrespective of whether what was written or said is true.

A Trump Court might agree that we have too much license to speak and publish, and revisit and reverse two vital, modern unanimous First Amendment rulings. 

In 1964, the court ruled in New York Times v. Sullivan that critical publications have constitutional protection from libel suits by public officials even when defamations involves unintentional error. Times v .Sullivan is a foundation of contemporary reporting and commentary.  

The other case started here. In 1969, Brandenburg v. Ohio said government cannot punish inflammatory speech unless the words are directed to inciting, and are likely to incite, imminent lawless action.

Klan leader Clarence Brandenburg had been convicted in Hamilton County of violating Ohio’s criminal syndicalism act which punished advocacy of violence.  

We’re so accustomed to a half-century of vigorous press and speech that we forget that none of this is irrevocable. 

CONTACT BEN L. KAUFMAN: [email protected]