Skip to 2:10 for the lowlight from today’s rally in Texas — which was carried live, I believe in its entirety, by all three cable news networks as another in-kind contribution to Trump 2016. What makes this Trumpier than every other soundbite is the high-even-by-his-standards blend of ignorance, fascist impulse, and canny populism behind it. Ignorance: There’s little Trump could do as president to “open up libel laws.” The test for defamation under the First Amendment was set by the Supreme Court more than 50 years ago. Only the Court (or a constitutional amendment) could undo it and I’d guess there’s not a single vote among the current eight to overturn it. Trump would need to appoint multiple justices, all committed to dumping New York Times v. Sullivan, to put a dent in the governing legal regime for libel, and a judge who wanted to “open up libel laws” to make it easier to silence the media might well end up being Borked because of it — by Democrats, at least, if not by the new Trumpist GOP. It’s not going to happen. Maybe Trump knows that and is just stroking his audience or maybe his grasp on basic civics really is this weak. Plenty of voters won’t know enough about how this works to realize he’s jerking them around, though.
More ignorance: Under New York Times v. Sullivan, you’re already allowed to sue the media for “purposefully … false” stories. In order to prove libel, even for a mega-famous public figure like Trump, the plaintiff needs to show that the author made a statement of fact knowing it was false or with reckless disregard for its truth or falsity. (If you’re not famous, i.e. a non-public figure, you need to show merely that the author was negligent in making a false statement.) “Purposely false” stories obviously qualify as libel under that test. Again, either Trump doesn’t know what he’s talking about or he botched what he was trying to say here. What he probably meant by “opening up” libel laws is that he wants to lower the standards for public figures so that he can sue newspapers whenever they get a fact about him wrong, even if it’s a good-faith mistake and they really did try to get it right. Or maybe he wants to go further than that and be able to sue whenever they publish a fact that really damages him, whether it’s true or not. That’s one way to “open up” the law: Eliminate the idea that truth is an absolute defense to libel. Either way, a would-be president pining openly for a change that would make it easier for him to silence the media is pure banana-republic garbage, the sort of thing that would give the right a case of the vapors if Obama had said it on the trail in 2008. But because Trump’s pitching it at right-wing populists, who despise the press, it’ll be received as a heck of an idea.
The best part of this, though, is how it typifies the Trump phenomenon in that he’s using populism as a vehicle for his own fatcat interests. Ninety-nine percent of the population will never have to worry about being libeled by the media; only the mega-rich and mega-famous like Trump, who has endless resources to combat negative reporting about him, give a wet fart about the defamation standards for public figures. As a friend joked on Twitter, “If only there was a way for billionaires to control the media.” He’s using the adulation of his fans to build populist momentum against his own hyper-elitist pet peeves. Next he’ll be telling you that the surest way to defeat ISIS is to eliminate the estate tax. And all of this is set, surreally, against a backdrop of the same supposedly libelous media giving him tens of millions of dollars in mostly flattering coverage, replete with carrying his campaign events live from start to finish. Rubio is desperate to get media traction today to capitalize on his debate performance last night, but Trump’s already snuffed that out by rolling out Christie’s endorsement and then holding this rally in the middle of the day when the cable networks are desperate for something interesting to air. The media’s been his most reliable ally since he entered the race and he still wants more control over the message. You’re stone nuts to empower a guy who thinks like this.