When I was a child, I gradually learned the meaning of a parental claim to consider one of my requests. “Hey, Dad,” I’d ask, “can I go play in traffic?” After a moment to shift his focus from tuning the car or working on the yard, my father would reply, “I’ll think about it.” For a while, I thought that meant I should follow up on my question, but when I did, the only answer I got was, “I told you I’d think about it.” Eventually, it dawned on me that “I’ll think about it” actually meant “No, and I don’t want a discussion about it right now either,” which was a little confusing, as Dad never shied away from telling me No and ending the discussion forthwith on other requests, such as extra cash when I hadn’t done my chores. At those moments, Dad could get downright direct.
The White House has been using similar language in relation to Donald Trump’s oft-expressed desire to expand libel and slander laws to sue reporters and media outlets for bad reporting. Reince Priebus told ABC’s Jon Karl on Sunday’s This Week that it was “something we’ve looked at, and … whether that goes anywhere is a different story.” The next day, Sean Spicer said almost exactly the same thing to reporters in the daily briefing:
Q One follow-up question. On Sunday, Chief of Staff Priebus, talking to this gentleman right here, said, with respect to the libel laws and the First Amendment, talking about news outlets that printed false articles, “I think it’s something that we’ve looked at. How that gets executed or whether that goes anywhere is a different story.”
Is that a project that is currently being worked on by the counsel’s office? Can you just tell me the status of that? Who is pursuing that?
MR. SPICER: I think the Chief of Staff made it very clear that it’s something that is being looked into substantively and then both logistically how it would happen. But that’s nothing new. It’s something the President talked about on the campaign trail.
Q Is the counsel actually investigating this?
MR. SPICER: I will not go into it.
This has prompted a rash of dire warnings about totalitarianism and the coming Trumpocalypse — or more accurately, another Trumpocalypse. (How many are there? I’ve lost count.) The warnings are vastly overblown, however, because it seems clear that the White House staff is just paying lip service to the boss by using Dad Language to shrug off questions about Trump’s venting sessions. And as I write in my column for The Week, it’s also because trying to undo Sullivan would be a deeply dumb idea:
The issue isn’t actually libel and slander laws per se, but a Supreme Court decision more than 50 years ago. In New York Times Co. v Sullivan, the court unanimously ruled in 1964 that sharply limited libel claims from “public figures” — politicians in Sullivan, but also others who seek out public fame — to instances of clearly false reporting resulting from “actual malice.” That surpasses malicious intent, as plaintiffs must essentially prove that the respondents set out to purposefully and knowingly smear them with false reporting. That does not make it impossible to win a libel suit, but it establishes a very high bar for public figures to punish speech with which they disagree or find objectionable.
What would happen if Congress passed a statute which dispensed with Sullivan? Most likely, the Supreme Court would strike it down, on the same basis which the earlier court found in Sullivan 53 years ago — the First and Fourteenth Amendments. However, if it survived such scrutiny, or if it miraculously got ratified as a constitutional amendment, it would suddenly become very, very dangerous to assert any derogatory facts or conclusions about the rich and powerful, regardless of how well critics might be able to support them. Media outlets like The New York Times, broadcast networks, and cable channels would have the resources to fight in court over those claims, but likely would end up attempting to avoid lawsuits in general by restraining their reporting and analysis. Smaller media outlets could find themselves put out of business quickly, either through extraordinarily high liability insurance premiums or through one or two costly court actions.
We might rid ourselves of some bad reporting and negative coverage of public figures. We would also see an end to some good reporting, simply out of an abundance of caution on the side of risk management. The media would surely find it easier to provide more hagiographic coverage of politicians and the powerful, leaving Americans more in the dark than ever.
This controversy does underscore one important point about the virtue of the First Amendment. The powerful — whether they be politicians complaining about coverage or trying to shut down dissent by labeling it “hate speech” — recognize its ability to hold everyone accountable. Just because some aren’t terribly good at its practice is no reason to disarm everyone.
No one sounds terribly serious about it — not even Trump, who’s only tweeted occasionally on the subject — so it’s hardly a threat to a free press, except perhaps in shifting the Overton window a bit on media accountability. If by some disaster this actually came to pass, it would be a serious detriment to political debate; think of it as a kind of de facto Fairness Doctrine, except applied to everyone (including bloggers) and not just broadcast media. But at least that would keep the issue in the courts, whereas Howard Dean and progressive extremists want to shut down through prior restraint anything they see as “hate speech,” using the executive branch for those determinations. It’s the Deans and the “safe spaces” enforcers who present a much deeper threat to free speech and represent a coming totalitarianism far more than those who want to undo Sullivan.
And those people aren’t using Dad Language, either.