The sanctimonious hypocricy at the heart of this strategy is egregious. The First Amendment, against which Trump inveighs when it is used against him, is the very thing on which Trump relies when he harangues everybody else. The First Amendment standard which allows him to criticise Hilary Clinton (see New York Times v Sullivan376 US 254 (1964)) is the same standard which allows him to criticise judges (Garrison v Louisiana379 US 64 (1964)) and it is the same standard that allows the New York Timesto criticise his tax affairs. If he changes the Sullivan standard so that the New York Times can’t do that, then he changes the standard that protects his own incoherent fulminations.
Of course, Trump won’t be able to change the Sullivan standard; it is too well entrenched in the jurisprudence of the US Supreme Court for that (see Hustler Magazine v Falwell 485 US 46 (1988) 52 (Rhenquist CJ); but cf the views of the late Scalia J). So, instead, Trump is working in other ways to curb the media and undermine the First Amendment – and if this sabotages Sullivan and leads to its reversal, so much the better: “when the New York Times or the Washington Post writes a hit piece, we can sue them”. But, even without a change in the law, his celebrity and alleged personal resources mean that he can wage war against media organizations he doesn’t like. For example, the day after Gawker.com conceded defeat in the face of billionaire Peter Thiel’s determined (and long-secret) war against it, Trump’s wife has taken to the fight, using Thiel’s law firm to over allegations about her immigration status when she first went to the US. This is just straightforward bullying by Trump, Theil and their ilk, using their fortunes to intimidate the media.
Meanwhile, Trump’s crying also continues. In the sort of personal attack that he would sue over, Trump’s latest assault is on Irish businessman Denis O’Brien, and his association with the Clintons. Trump makes the kind of allegations that have in the past seen O’Brien reach for his lawyers. O’Brien is keeping his counsel at the moment, but if he remains true to form and responds with a lawsuit, then where he launches it will have a large bearing on the outcome. If he sues in Ireland, his damages will be limited; and, however much they might be, they would not in any event be recoverable in the US. If he sues in the US, Trump will smugly wrap himself in the US flag and the First Amendment; but it would be interesting to see Trump’s own bullying tactics used against him; and he may find that he has bitten off more than he can chew on this one. The whole episode neatly illustrates Trump’s foul-smelling hypocrisy and crybullying forked tongue – hiding behind the First Amendment to assail the Clintons via O’Brien, taking advantage of the media coverage his onslaught has generated, but yet threatening the media when he doesn’t like what they say, seeking to hold them to higher standards than he holds himself. He should take a deep breath and a long look in the mirror, thank his lucky stars for the US Constitution (even if he doesn’t know what it says), and leave the First Amendment alone. As for O’Brien, if he does sue Trump, at least this time he’ll be taking on someone his own size. But, otherwise, he too should take a deep breath and a long look in the mirror, thank his lucky stars for the Irish Constitution (even if he too doesn’t know what it says), and leave its free speech provisions alone.