Tasteless and corrosive as today’s presidential campaigns have become, speaking ill of political opponents or our government is nothing new.
Still, the Oct. 9 debate was a reminder that we no longer are accustomed to personal vitriol, and we recoil when it comes at us on TV or it’s reported by the news media or shown online.
Whether the 2016 campaign is the ugliest in our nation’s history is something I’ll leave to historians.
Oct. 9’s appalling exchanges were rotten with accusations of lying, other insults and Trump’s interruptions, grimaces and deliberately distracting body language.
Moderators opened with a question about the Washington Post video in which Trump brags he could get away with kissing strangers and grabbing women by their “pussy” because he’s a “star.”
Trump denied doing any of that “locker room” banter, but Clinton said that’s “exactly who he is” and that he’s unfit to serve as president.
The low point in a gutter-cruising 90 minutes was Trump’s naming women in the audience who accused Bill Clinton of sexual assault. They were his guests.
Trump said his bragging was just “words” but that Bill Clinton was guilty of “actions” and Hillary was an accomplice.
And Trump said that if he is elected, he’ll jail Clinton over her handling of emails.
More than once during the past three centuries, such personal attacks were treated as crimes in this country. Today, with constitutional protections, that’s no longer possible.
My fear is that free speech in any form or forum can be so noxious that some Americans will turn away and opt out when it’s time to vote.
Even so, I value the candidates’ freedom to be nasty, deceitful, deceptive or worse. It’s my freedom, too. I can call them what I like, protected by the same First Amendment and modern court decisions.
There’s an important corollary that too many Americans forget: Our freedom to ignore the dispiriting political cacophony and accompanying racist, xenophobic, antisemitic, sexist and homophobic rants by a candidate or his supporters.
Instead, we can watch DVDs of Mr. Smith Goes to Washington and toss the newspapers, ignore the internet and social media, turn off radio and TV.
Our freedom to offend hasn’t come easily, and it’s rare among nations that present themselves as democracies.
In the 1960s, when I was a night editor of the Rome Daily American, we had an Italian employee whose title was roughly “editor responsible.” He had nothing to do with what we published. Rather, I was told, that in exchange for his significant retainer, he’d go to jail if the paper violated some surviving Fascist press law.
And much more recently, Britain considered banning Trump because his anti-Muslim bigotry was criminal hate speech.
So raise a stein to German-American printer John Peter Zenger, who was charged in 1735 with publishing seditious and libelous material written by partisan contributors in his New York Weekly Journal. In that era, the greater the truth, the greater the offense; Zenger and his contributors were critical of British colonial Gov. William Cosby.
Zenger’s lawyer, Andrew Hamilton, rejected the traditionally decisive role of a trial judge and argued that jurors should decide whether the printed statements were true.
And in a second rejection of legal precedent, Hamilton argued that if the statements were based on fact, there was no libel.
Zenger was acquitted. That argument and verdict remains a foundation of our respect for juries and our vigorous political speech and press.
The verdict, however, didn’t change the law. Freed from British rule, newly independent Americans turned on each other, passing four partisan statutes known collectively as the Alien and Sedition Acts in 1798.
The Sedition Act was the effort by Federalists to curb vitriolic, personal criticism of President John Adams. Their justification: Fear of aliens and the power of words to weaken the new Republic.
The Sedition Act criminalized publication of “false, scandalous, and malicious writing” against the government or its officials. Scandalous and malicious could be true and still criminal.
Outrage — sometimes invoking the Zenger case — helped Thomas Jefferson defeat Adams’ re-election. Jefferson pardoned everyone convicted under the laws and ordered their release.
The act expired before 1803 when the Supreme Court could have ruled on its constitutionality; nevertheless, the law’s spirit lives on.
For instance, Congress responded to anti-German hysteria when the United States entered World War I in 1917, passing a new sedition law. To its shame, the Supreme Court upheld it in 1919. That law criminalized “disloyal, profane, scurrilous or abusive language” about the United States government, its flag or its armed forces or that caused others to view the American government or its institutions with contempt. Again, it was criminal even if true.
The 1917 law also suppressed speech that might interfere with war bond sales and conscription or promote pacifism. Before long, however, that new sedition act was repealed.
Again, in time of fear, Americans sought to suppress political speech. In 1940, the Smith Act criminalized any speech or activity that advocated violent overthrow of our government. Hundreds were convicted before the Supreme Court struck down the law in 1957.
Today, defamation is a civil, not criminal, matter. Trump wants to change libel law to make it easier to sue critical news organizations. He told a Ft. Worth audience, “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”
His ignorance of constitutional protections for the news media and private individuals is profound. To win any libel suit, a public official or figure first must prove the defamation was published despite the knowledge that it was wholly incorrect or with reckless disregard of its falsity.
That standard was set by the U.S. Supreme Court in 1964 in the famous New York Times Co. v. Sullivan decision. Changing that is beyond a president’s powers.
Trump’s contempt for news media recalls President Adams’ motive for signing the Sedition Act. Both want to punish critics at the expense of free speech and free press.
Maybe Trump doesn’t care that the Supreme Court opinions assume the Sedition Act and its progeny would be found unconstitutional today.
For example, in Times v. Sullivan, the Court declared, “Although the Sedition Act was never tested in this court, the attack upon its validity has carried the day in the court of history.”
Meanwhile, the internet and social media have given personal calumny free reign along with anti-semitism, racism and other pervasive American hates; it’s no puzzle why these rightwing websites proliferated with Obama’s election. Trump’s implicit approval and invective brought them into the mainstream and we now write about them.
Speaking of personal attacks, not all have to be tasteless. Consider The Cincinnati Enquirer’s endorsement of Clinton, which added, “Trump is a clear and present danger to our country.”
“Clear and present danger” is an historic legal concept meant to identify threats to national security.
You can’t get much clearer or more urgent than that.
Curmudgeon Notes:
• The Washington Post came up with the biggest news story — so far — of the presidential campaign: Trump bragging on video about the joys of criminal sexual assaults on women.
Nonpartisan outrage focused on Trump’s claim that he could kiss strangers and grab women by their “pussy” and get away with it because he’s a “star.”
We haven’t seen the end of this, and the video’s contents had a major role in the second presidential debate. When pressed by the moderators, Trump repeated his “locker room” explanation and apology for saying what he did.
Deflecting moderators’ questions and Hillary’s loathing, he went after Bill Clinton’s reputation as a philanderer. Trump named women in the audience — his guests — who accused Clinton of sexual assault.
Whether The Post’s scoop will change anyone’s vote is unclear; his remarks about women are no surprise. Some Americans will whoop it up for his manly exploits. Others will flinch even from his name.
• Speaking of scoops — an archaic term from the era “wire services” and “newspapers” — London’s weekly Economist scored with an essay by Obama on our nation’s economic challenges. It’s at economist.com in the Oct. 8 edition. In the accompanying editorial, the Economist story said in part, “In several areas, our priorities would be different. … But it is a serious and thoughtful attempt to assess America’s economic strengths and weaknesses. In today’s raucous and sometimes hate-filled campaign environment, that makes it all too rare.”
• One way to watch our political unwinding is through foreign news media. They skip over trivia and focus on larger themes. A recent essay on the Canadian Broadcasting Corp. website said “Republicans are in the midst of an identity crisis of serious consequence. With Trump, they are, to a greater extent than ever, declaring themselves the party for white Americans. To pretend Trump isn’t fundamentally transforming the Republican brand in ways that are, to some, disgusting is plainly dishonest.”
• In that same Oct. 8 edition (above), the Economist said, “One of the many unfortunate consequences of America’s presidential election turning into a reality TV show is the near-total absence of serious debate about economic policy. The vitriol on both sides of the partisan divide has made it all but impossible to have a minimal agreement even on the facts. Mendacity and insults have left no room for any substantive discussion about what the next president’s economic priorities ought to be. Whatever you think of Donald Trump, his populist, protectionist prescriptions are woefully short on policy detail; the few areas where concrete plans exist are internally inconsistent (slash taxes, increase spending and eliminate government debt). Hillary Clinton has reams of wonkish proposals, but she has trouble articulating an overall economic agenda and, amid the rhetorical mud-wrestling, her fiddly ideas have received little scrutiny.”
I hold the national news media to account for this. If they pressed the candidates aggressively for answers instead of chasing every red herring, we’d be better off as voters. Endless stories about emails, foundations and Trump criminal boorishness — grabbing a woman by her genitals is assault in every jurisdiction — are stale even when new in this election season.
• I finally worked my way through periodicals that piled up when I went fishing. If you want the kind of stunning, literate and lacerating journalism that we rarely see in American dailies or weeklies, go to economist.com and read the essay, “Trump in the dumps.” It’s from Aug. 6, but its age is less important than the clarity and force of its writing.
• The national Center for Investigative Reporting and Scripps News/WCPO dug deeply into the mess at Cincinnati’s VA hospital. They included interviews with some of the more than 30 whistleblowers. I caught it on NPR.
Among the troubling claims were those from an operating room staff member who said his repeated warnings about systemic failures to sterilize surgical instruments went unheeded. Another important element was the role budget restraints played in reducing what had been key medical services. What I didn’t hear was whether care was compromised by forcing vets to seek their care from local physicians at VA expense. You can find the series at WCPO.com and a transcript at the center’s revealnews.org.
• A recent explanatory column in The New York Times reinforces my contempt for the news media fetish with polls. Instead of slavish stories about any poll provided by pollsters or their clients, let partisans do their polling. If we know how poll results affect political decisions, report that. That’s legit.
But just reporting polls as sage is dishonest journalism, and it maintains the news media view of the presidential campaign as a horse race. Worse, nonstop emphasis on polls validates their importance when reporters and editors know otherwise.
A poll is as valid an insight into politics as one snapshot represents a family life… except that the photo is an accurate image of that moment.
There are lots of reasons polls can be misrepresentations of voter/public opinion, not least that respondents sometimes give what they think is the appropriate answer rather than their true thoughts or intentions.
That polling error — built into polling itself — was blamed for the failure to predict the recent British general election result. Polls mostly showed Labour roundly defeating the Tories. The opposite happened. More than one post mortem concluded that many respondents were too embarrassed to say they’d vote for the Conservative Party candidates.
The recent New York Times survey explained how reviews of American political polling found the margin of error probably was double what pollsters reported. Instead of the contest being going 3 to 6 points in either direction — an acceptable and seemingly unavoidable uncertainty — the margin of error was double that and further reason for journalists to ignore most polls as newsworthy.
• The kerfuffle over Facebook deleting the famous photo of a naked Vietnamese girl fleeing napalm involves more than censorship and abuse of power by Facebook.
A more important lesson is that someone, somewhere, always is making news judgments. That includes folks who write the algorithms that automatically accept or reject Facebook images. Blaming the algorithms is as mindless as the algorithms.
Another lesson: With the ubiquitous internet and social media, wrongly equating a war photo with child porn because 9-year-old Kim Phúc is running toward the camera gets rebutted immediately.
Facebook initially objected to the image in a Norwegian paper’s feature, “The Terror of War.” Facebook told Aftenposten to remove or pixelize Kim Phuc’s image. “Any photographs of people displaying fully nude genitalia or buttocks, or fully nude female breast, will be removed,” Facebook warned.
Before the paper could respond, Facebook deleted the article and image from Aftenposten’s Facebook page.
Editor Espen Egil Hansen went public and damned Facebook’s action. International reaction forced Facebook to restore the article and image.
“The media have a responsibility to consider publication in every single case,” Hansen wrote. “This right and duty, which all editors in the world have, should not be undermined by algorithms encoded in your office in California.”
Founder Mark Zuckerberg’s response was, at best, naive. “We are a tech company, not a media company.”
• London’s dailymail.com can take credit for revealing how disgraced New York politician Anthony Weiner engaged in a sexually charged online exchange with a 15-year-old girl. Local and federal authorities are investigating the messages.
The girl and her father revealed the interstate relationship to dailymail.com, but the Brits haven’t said why. There also was no explanation if and why the girl initially contacted Weiner.
Weiner’s career crashed after previous sexual exchanges with older women.
When confronted with the girl’s claims, dailymail.com said, Weiner did not deny exchanging “flirtatious” messages with the teen. He refused to comment on the specifics of the allegations on the record. However, he provided copies of two emails the girl sent him that he contends raised questions about her claims.
Weiner also told dailymail.com, “I have repeatedly demonstrated terrible judgment about the people I have communicated with online and the things I have sent. I am filled with regret and heartbroken for those I have hurt. While I have provided the Daily Mail with information showing that I have likely been the subject of a hoax, I have no one to blame but me for putting myself in this position. I am sorry.” What Weiner meant by “hoax” was not clear.
•The young Minnesotan en route to becoming Bob Dylan played at the 10 O’Clock Scholar, a coffee shop a couple blocks from the University of Minnesota in Minneapolis.
Dylan just won the Nobel Prize for Literature for his lyrics, probably the only Laureate from Dinkytown, as our village was known.
The Scholar was the only coffee shop and it was the Beatnik era in the Twin Cities. Folk music was in.
Typically, Dylan and others would sit on stools in the front of the small shop with their backs to the window facing Al’s Diner.
A friend, Clark Batho, owned the Scholar. I sometimes helped out. About all I remember about Dylan — then Robert Zimmerman down from the Iron Range and living at the Sigma Alpha Mu fraternity house — is the occasional customer complaint about his singing.
CONTACT BEN L. KAUFMAN: letters@citybeat.com
This article appears in Oct 12-19, 2016.
