Lt. Col. Alexander Vindman (Ret.), a key figure in the first impeachment trial of President Donald Trump, published an op-ed Monday at the Lawfare blog in which he proposed suing conservative media outlets to make them less “radicalized.”
Vindman had worked at the National Security Council, and appeared in dress uniform before the House Intelligence Committee to testify against Trump in support of the theory that Trump had withheld aid from Ukraine in exchange for investigating his 2020 rival, Democrat Joe Biden. (Evidence provided by other witnesses contradicted that claim.)
Vindman would not reveal who the anonymous “whistleblower” was who reported the president’s phone call with the Ukrainian president, and recent analysis by Byron York of the Washington Examiner has suggested that Vindman himself was the main instigator of the investigation that led to the impeachment, which ultimately led to Trump’s acquittal.
During the impeachment inquiry, Vindman made much of the fact that he and his family had fled the Soviet Union, and that he had “a deep appreciation for American values and ideals and the power of freedom.”
Now, lamenting that he had not responded by suing President Trump over tweets about him, and noting that the First Amendment “gravely” limits what government can do to stop “lies” by the media, Vindman argues that “right-wing media” (alone) should be held accountable through a lawsuit strategy:
Recent events have made the need for accountability more pressing than ever. Should anyone be surprised that viewers of right-wing media are radicalized when media personalities themselves promote radical ideas based on lies?
But while the rioters are being held accountable through the criminal justice system—and Congress at least had a chance to hold the former president accountable through the impeachment process—how can Americans hold the right-wing media responsible for its role in the attack? The mob that attacked the Capitol was born of hatred fomented by the right-wing media. These insurrectionists were raised for years on a steady diet of disinformation and half-truths, which produced the fertile fields for radicalization.
The First Amendment gravely limits the available tools to seek accountability for the right-wing media. Policymakers cannot, after all, tell media organizations what to say. Except in the most extreme situations, which are unlikely ever to arise, prosecutors also cannot accuse them of incitement.
Civil consequences, rather than governmental restrictions on First Amendment rights, could be a meaningful way to take what are fundamentally money-making ventures and demand truth from them, instill rigor in their reporting, and uphold accountability. Like a tabloid being sued and paying severe penalties, media companies and right-wing media personalities will claim that what’s at stake is freedom of speech. But defamation is not covered by the First Amendment, so this is, by definition, not true. And the generous standards in defamation law for purposes of protecting the press offer a true safe haven for good-faith actors even when they err. Putting companies in fear of the real costs in civil damages for slander, libel, and false claims that can cumulatively incite violence and that can individually harm actual human beings should have a restraining effect on their behavior.
Read Vindman’s full op-ed at Lawfare.
Vindman’s strategy replicates that used by left-wing pressure group Media Matters, whose “Project 2012” strategy document called for lawsuits to be brought against “Fox News and its feeders,” providing “counsel or litigation costs” to potential plaintiffs.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.