At Speakers’ Corner in London’s Hyde Park, there’s nearly no limit on “free speech.” Every Sunday, assorted extollers and blowhards gather to preach to the assembled masses — whoever shows up.
There are few laws on the British books covering the action, which has been going on for nearly a century and a quarter.
But there are rules that are occasionally enforced. Obscenity is frowned upon, as are serious threats to Her Majesty. It took some hints of violence to get several Irish Republican protesters arrested in 1972.
But no speaker has appeared with such an exalted status that his or her identity itself became the issue. No one has ever judged what should become of the “free speech” of a U.S. president if he all but openly advocates shooting U.S. citizens.
There’s no guest list at Speakers’ Corner. No one attempts to use his Twitter account to spread messages that are clearly false. Were President Trump to visit and decide to test the limits of decorum, he would replay the drama that began with a late-night tweet last week.
Trump and his Twitter-use are sparking a rare contest to test limits on acceptable speech and conduct unbecoming a president.
It arose when Trump blasted the “very weak Radical Left Mayor of Minneapolis” and said of protesters there, “when the looting starts, the shooting starts.” This came after riots protesting the death of George Floyd, who is black, and killed by a white police officer over suspicion that Floyd used a fake $20 bill at a convenience store.
This was also the week that Twitter decided to enforce its rules against exhortations to violence by tagging Trump’s tweets with fact-check reminders. Trump was furious, and penned a supposed executive order threatening to lift Twitter’s legal protection. Facebook’s Mark Zuckerberg refused to limit Trump’s speech there, claiming he didn’t want to be an “arbiter” of truth. Critics claimed he was caving to Trump’s threat to use regulators to harm Twitter’s defenses. Was this a game of all’s-fair in love and war?
In sports, there’s a practical limit to out-of-bounds behavior. A penalty box, flag, multi-game suspension or expulsion looms. There’s continuing argument over disputed pass interference calls.
For the U.S. president, the stakes are an election five weeks from now. Trump’s gambling a second term on his behavior, calculating that he’s got enough supporters who see things the way he does.
When things get this testy at the White House, media other than Twitter and Facebook think about their own protections.
They use the same legal test that would affect Trump and Twitter. Are the media players acting as “publishers” or “platforms?”
A newspaper like the Aspen Daily News presents a “platform” for reader views when it publishers a letter to the editor. Under current law, the newspaper has little protection against suits brought due to a nasty letter that is false and damages reputation. Libel is exactly that — damage to reputation — but publishers are shielded by several “privileges.” A media outlet is protected if the objectionable material is true, or if it rose from an utterance at a governmental meeting, hearing or quotes claims made in a lawsuit.
But if the nasty stuff isn’t covered by “privilege,” it could open up the outlet for damages. Curiously, one defense is the notion that a speaker or letter-writer has such a bad reputation already that he can suffer no further damage.
Has Trump already done himself in with his history of spiteful tweets or utterances from a White House podium? He may feel he’s in too deep — and must test the limits — to salvage damage he perceives came from his slacking performance in the pandemic of 2020 and other woes.
The most important defense for a politician in Trump’s position is that opinion is always protected. Its holder may be a contemptible idiot lacking any evidence of moral character, but if his utterance was merely opinion, he can’t be held liable for it.
But he could still remain on the hook for the practical consequences of mean or kooky behavior. He could also go out of bounds through damaging a private individual. Legal scholars say Trump is in such trouble over recent tirades in which he’s suggested that commentator Joe Scarborough killed his one-time Congressional assistant a decade ago.
Some of Trump’s Twitter tirades may go down as opinion, because the speech isn’t precise enough to qualify as facts.
The landmark case here was a 1987 federal case which came down to the words “sliming” and “sleazebag.”
The coach of the former USFL football Denver Gold team, Mouse Davis, was furious that an agent had apparently screwed up his deal for a star quarterback. He blamed it on an agent he termed a “sleazebag” who “slimed his way up from the bayou.”
The agent sued, claiming he was none of the above. Judge Jim Carrigan, sitting in U.S. District Court in Denver, wondered where our tolerance had gone for a loud bout of name-calling in the sports world. As a matter of law, he ruled that neither “sleazebag” nor “sliming” were specific enough terms to represent actual fact. Thus, Davis’ claim was one of opinion, not fact, protecting him against a libel claim.
As for a U.S. president nearing an election, we may wonder about the next chapter in Trump’s life after he leaves office. Perhaps there’s a shop in his future called, “Mr. T’s Fib Factory.” It will offer “Any fib for a fee.”
The key question: will he still have Twitter or Facebook by his side?
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May 31, 2020 at 06:00PM
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Danforth: Practical limits to out-of-bounds behavior - Aspen Daily News
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