Lobbying and Campaigning Rights for Nonprofits

So, if religious groups can have a tax exemption, but are not resticted in their campaign and lobbying activities, surely it must be unconstitutional to deny the same rights to nonprofit organizations.  That would both be content based discrimination and establishment of religion.

That might lead to more than Trump bargained for today.

Be careful what you wish for.

A Contrarian View on Libel Law — Dealing with The Situation in Which The Courts Should Be Available to Establish The Truth, and Cheaply, While Making Sure that Libel Law Remains a Tool That Can Be Used By Truth Seekers To Counter Merchants of Hate

So the great and the good (and me, this time) get all upset when Trump talks about loosening libel law.  It not only fits with his ignorant aggrieved victim persona, but can be very effective at intimidating critics.

But maybe we should be thinking about it the other way.  Surely, if libel laws were easier to use, Trump would be the one in most trouble.  He is the one who shows the most contempt for the truth. the least consideration of the impact on others for his words, or tweets, the most propensity to state the impossible, the least willingness to back down, even when proven wrong, and the greatest tendency to make utterly inconsistent and destructive statements.

More importantly, while the increasing and consequence-free use of “false facts” is not caused by our current libel law, the difficulty of bringing libel cases against has made it much harder to stand up against such “facts” and to get social clarification and consensus for their falsity.

While public figure libel law has become more than a little technical over the years, the core reason remains the same, to prevent the victim of a good faith factual error from being held up to ransom and effectively silenced by litigation.  Its far more the cost of the litigation that acts as the deterrent (something Trump uses all the time) and so the effort is to cut this cases off quickly.

With 50 years of experience under our belts, and with the risks of lies in the political arena being far greater then they were then, maybe it is time for a nuanced look at the law, trying to make sense of a mix of goal, rather than see it as a matter of “loosening” or “tightening” them.

To be specific, I think most people would agree on the following:

Neither people or the media should be chilled from saying what they really believe to be true.

There IS a difference between a false fact and a misguided or wrong, or even maliious opinion.

The media should not bear huge litigation costs whenever someone does not like what they say.

Institutions to help in establishing truth are necessary function in a democracy.

When an assertion is beyond the bounds of reason, and the person responsible refuses to retract in any way, society needs mechanisms for establishing truth, and for doing so in a way perceived as legitimate by most.

Notwithstanding all the problems with the adversary system, the fact remains that the combination of a neutral fact finder, following formal rules, with presentation of evidence and confrontation of that evidence by all sides, and appropriate finality, is an amazing (if often expensive) engine for finding truth.

All of which leads me to the conclusion that the legal system needs some mechanisms for these situations, and that current mechanisms are failing.  Here is one thought:

A system of declaratory actions in which one who claims harm in a false statement about them can obtain a declaration of falsity, after a due process hearing.  State of mind is not in issue, and neither is damages, thus making this a far cheaper process for all sides.  A judgment would be subject to appeal, but not be res judicata in any subsequent damage action (Note to non legal jargon experts: this means that the truth or falsity finding can not be relied upon to obtain damages, even in a new case.)  As a practical matter, one found to have uttered a falsity is going to appeal to the court of public opinion to explain why they made the statement, but it is not at that point a legal matter.  Circumstances will be debated, but not at huge cost.  (Of course, truth can indeed change with new evidence over time.)

With such a new tool, no one would be precluded from attempting to obtain damages in a separate procedure, but current substantive legal standards for public figure libel would apply in that procedure.  Damages would depend on the level of culpability — i.e. contempt for the truth — as well as actual damage.  Thus a tool would continue to exist to use against that hate speech that was also libelous.  Such cases would be much rarer, much more expensive, and not used against the media, but against Nazi and hate groups that went beyond opinion.

I think that this would pass constitutional muster under New York Times v. Sullivan, given that nothing is being changed about speech suppressing substantive standards.


The Right Wing Press Loses Its Credibility if They Do Noting to Pressure Trump on Press Access

Fox, the Wall Street Journal and friends, now face a critical pass-fail test.  As the Times put it:

Reporters from The Times, BuzzFeed News, CNN, The Los Angeles Times, Politico, the BBC and The Huffington Post were among those shut out of the briefing. Aides to Mr. Spicer admitted only reporters from a group of news organizations that, the White House said, had been previously confirmed.

Those organizations included Breitbart News, the One America News Network and The Washington Times, all with conservative leanings. Journalists from ABC, CBS, The Wall Street Journal, Bloomberg and Fox News also attended.

Reporters from The Associated Press and Time magazine, who were set to be allowed in, chose not to attend the briefing in protest of the White House’s actions. The Washington Post did not send a reporter to the session.

Is the response of the right wing press, to paraphrase Martin Miemoeller:

First they came for the mainstream press, and we did not speak out, because we are not mainstream press.   .    .   .

And here the immediate needed action, shown by AP and Time, is simple.  If you want to talk to us, you have to talk to everyone.

If those who attended the gaggle, fail this test again, they will have shown that political loyalty and short term economic interest trump freedom of the press.  So, they have lost all intellectual credibility, and so have any who continue to work for them.

This is a pivotal moment of choice.  History will hold them accountable, whatever else happens.