Pollak: Trump Takes Antonin Scalia’s View on Libel and the First Amendment

President Donald Trump’s critics attacked him over the weekend for a tweet in which he complained — not for the first time — about the legality of the media’s bias against his administration, suggesting it be “tested in court.”

A REAL scandal is the one sided coverage, hour by hour, of networks like NBC & Democrat spin machines like Saturday Night Live. It is all nothing less than unfair news coverage and Dem commercials. Should be tested in courts, can’t be legal? Only defame & belittle! Collusion?

— Donald J. Trump (@realDonaldTrump) December 16, 2018

In recent years, Trump has made similar complaints about the difficulty of suing journalists in American courts for libel.

Isn’t it a shame that someone can write an article or book, totally make up stories and form a picture of a person that is literally the exact opposite of the fact, and get away with it without retribution or cost. Don’t know why Washington politicians don’t change libel laws?

— Donald J. Trump (@realDonaldTrump) September 5, 2018

In response, Trump’s critics, right and left, accused him of attacking the free press and the First Amendment:

Things Trump should tweet about: #winning
Things Trump shouldn’t tweet about: legal issues and the First amendment.

— Elisha (@ElishaKrauss) December 17, 2018

.@brianstelter takes a look at a recent tweet where Trump says “one sided coverage” on news networks and SNL “should be tested in court.” Stelter asks @joanwalsh to give the president a refresher on the First Amendment pic.twitter.com/c6ZTOyk1vA

— Reliable Sources (@ReliableSources) December 16, 2018

But Trump is doing no more than adopting the view of the late Supreme Court Justice Antonin Scalia, the conservative hero celebrated for his originalist reading of the U.S. Constitution. As the Washington Post‘s Erik Wemple noted in 2012, Scalia opposed the Court’s decision in the landmark New York Times v. Sullivan case. He explained his opinion in an interview with Charlie Rose of CBS News, as summarized by Wemple (original link):

In a recent ‘Charlie Rose’ interview that might well horrify tabloid executives across the land, Supreme Court Justice Antonin Scalia made clear that he “abhors” that ruling.

Here’s how the justice short-hands the court’s finding: “You can libel public figures at will so long as somebody told you something, some reliable person told you the lie that you then publicized to the whole world — that’s what New York Times v. Sullivan says.”

It’s not that Scalia takes issue with the principles behind the decision. They may well be sound and constructive, he says. But that doesn’t mean that the Supreme Court had any business messing around with centuries-old understandings of free speech.

When the First Amendment was ratified, he argues, “Nobody thought that libel, even libel of public figures, was permitted, was sanctioned by the First Amendment. Where did that come from? Who told Earl Warren and the Supreme Court that what had been accepted libel law for a couple hundred years was no longer accepted.”

The Business Insider noted Scalia believed that “[a]t the time it was adopted, nobody thought that the First Amendment would encompass the ability to libel somebody.”

Right or wrong, Trump’s view ought not be scandalous — especially to conservatives.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.