Free speech has limits…even for Trump

By Rich Heiland, Columnist, The Times

GIVEN THAT EVERYONE a keyboard has weighed in on some aspect of the most recent Trump indictment, why not an old guy in West Chester? Not that I know as much as the national pundits and not that a whole lot of folks sit waiting for my latest posting. But, after a life in journalism, sitting down and letting thoughts flow is kind of how I kill time.

There is, though, one area I am pretty familiar with and that’s “free speech.” As a journalist, and editor and newspaper CEO, I spent a lot of time immersed in free speech. I’ve also taught, as a part of a college level journalism course, libel and slander.

Given that Trump is saying that everything he ever has done can be defended by invoking “free speech,” and that Special Counsel Jack Smith’s indictment is, pure and simple, an attempt to stifle The Donald’s speech, I offer some thoughts.

First, is there such a thing as “free speech?” Well, yes. But only in the context of the U.S. Constitution and even that speech has, over the years, had some limits imposed on it at both the Federal and State levels.

Let’s begin with the First Amendment to the Constitution:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment, echoed by most state constitutions, says “Congress” shall not abridge freedom of speech, or of the press. Period. That amendment was created in large part because a lack of freedom of speech, both oral and in print, was something very real to the Founders.

But our “right” to free speech is a right when it comes only to government restrictions. Beyond that, we have no right to it. Your company puts out directives limiting what you, as an employee, can say publicly. An infringement? No. So long as restrictions do not violate established laws or case law interpretations of those laws, then it is not an infringement.

Our U.S. case law is filled with evolutionary rulings that limit speech, even when it might appear to be protected by the First Amendment. For example, there is the old “you can’t yell ‘fire’ in a crowded” theater adage. Even this is not a denial of free speech per se. What it means is that if people are injured by your yelling of “fire” then there could be civil, or even criminal, liability for you.

There also is the area of “defamation law.” Using language to defame a person or organization may not be covered by any First Amendment protections.

Defamation is not a criminal offense; hence case law comes from the civil side. You or I can file a defamation suit if we feel our reputation, our ability to earn a living or to function in society have been harmed by someone’s defamatory statements.

Defamation comes in two forms – written, which is libel, and spoken, which is slander.  civil lawsuit against someone if they suffer injury because of that person’s defamatory statements.

As a journalist I was always aware of libel and slander laws. If someone were to sue me for libel or slander as a journalist and be successful, they have to prove:

• I made a false statement of fact.
• The statement was published or aired.
• The statement caused injury.
• The statement didn’t fall into a privileged category.

ADDITIONALLY, IN most states and at the federal level “malice” can be considered along with professional conduct.

“Malice” means that I knew what I published or aired, was false and that I did it primarily to cause harm to the person or organization being written about. This is hard to prove, but it can be done. For instance, I always counseled reporters working for me to be very careful about going out for a beer at the end of the day and bragging loudly at the bar about a story that exposed someone, brought someone down. That boasting could be overheard and interpreted to be malice.

Also, in some cases “professional” standards have come into play. Much like the use of standard procedures medical care givers are expected to provide and are measured against in malpractice cases, professional journalism standards are invoked. If I do not do the due diligence expected of me, then I could be open to a libel judgment based on failure to follow reasonable and accepted standards, even if malice is not provable.

But while there have been adjudicated exceptions to absolute freedom of speech. One if a person or organization has put itself in the public eye where expectations of privacy are lower. Politicians, movie stars are examples of one exception. You also give up some protection as a common citizen if you participate in events or activities held on public property or in the public eye.

So, how does this all play with Trump?

Jack Smith has made it clear the indictments are not based on any sort of protected speech. For instance, no one is denying Trump his right to lie, and he does so almost every day. Truth is not required as a test for freedom of speech so long as it does not cross the line into defamation.

What Trump is being indicted on, and for, is not an exercise in free speech. He is being indicted for allegedly conspiring to overturn a legitimate election and illegally retain power, among other charges. A conspiracy or other illegal act exists when a person goes beyond what might be protected free speech and breaks a law. In this case when Trump met with his unindicted co-conspirators and tried to take what he knew was a falsehood and cause others to act.

In other words, if evidence shows that Trump knew the election was not stolen, that his claims were false, and yet he actively organized efforts, or participated in actions to overturn that election and retain power, then there is no issue of free speech. He went beyond speech to action.

That is why legal experts have been dissing Trump’s legal team’s responses to the indictments based on “free speech.” Unfortunately, the millions who remain duped by Trump, Fox News et al won’t take a nano-second to try to understand, or appreciate, just what free speech is and what it is not.

If you find yourself engaging with those folks, feel free to share this blog link. They won’t read it, but you never know….

Rich Heiland is a retired reporter, editor and publisher. He has been a part of a Pulitzer Prize-winning reporting team, National Columnist of the Year and a journalism instructor. He lives in West Chester.

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