The White House press room evidently won’t be in the White House any more, but in a building next door. On national television, President-elect Donald Trump insulted CNN as a purveyor of “fake news.” He pledged to sue the “liars” — the women who have accused him of unwelcome sexual behavior toward them. The Trump administration will be entering uncharted territory for news and free speech, which is why Los Angeles 1st Amendment attorney Ted Boutrous Jr., on Twitter, offered to defend, for free, “anyone Trump sues for exercising their free speech rights.”
Why did you make that offer?
I was sitting at home watching the news, and Mr. Trump was giving his speech at Gettysburg, of all places, and he announced that he was going to sue every woman who had publicly accused him of sexual misconduct. And it struck me that I had never really seen something so outrageous during a presidential campaign, where someone running for the highest office in the land was threatening to sue individual citizens who simply were speaking out as part of the democratic process during the election.
It just seemed to me to be such an egregious 1st Amendment affront that someone had to do something. Part of the danger in the 1st Amendment area — threats of lawsuits, threats to try to squelch speech — can chill speech. And this all came on top of his earlier threats to sue the New York Times and others. So I really felt it was important to let the world know there were lawyers who would defend them.
Among the lawyers who said they would join you in this are Laurence Tribe at Harvard and Erwin Chemerinsky at UC Irvine. What about conservative lawyers?
There have been other lawyers on the more conservative side — some partners at my law firm, lawyers from around the country who have said this isn’t a partisan issue. The 1st Amendment cuts both ways.
Have you had anyone contact you to say, I may have to take you up on this?
I have indeed. A number of individuals, including some of the women who had spoken out during the campaign about their experiences with Mr. Trump, several organizations that had issues they were confronting. We have been helping them out More broadly, I think there are going to be 1st Amendment issues going forward, once Mr. Trump is the president, that we’re going to need to confront.
Does Trump understand libel law?
I think he clearly knows about the libel laws because he declared that he wanted to open them up to make it easier to sue news organizations. He knows that they’re out there but he does not seem to have any understanding of how important 1st Amendment values are to our democracy and to our country, and he doesn’t have respect for those values. That’s what’s very troubling, that he uses his 1st Amendment rights, he uses Twitter, he uses his ability to get cameras to focus on him to threaten and demean the press and individual citizens, but doesn’t understand that it’s a two-way street, that people get to comment on him and criticize him. New York Times vs. Sullivan, the famous 1st Amendment libel case, said that our country is built on the freedom to engage in caustic, vicious debate to get to the right place. But Mr. Trump thinks it’s a one-way street where he has all the power.
Do you think he intends to follow through on his threats to sue?
It seems to me that at this point he’s highly unlikely to bring any lawsuits but he will keep threatening people. You saw he immediately demeaned and denigrated on Twitter the [Indiana] union official who was critiquing the Carrier job deal that Mr. Trump claimed to have struck; he immediately attacked this individual not for the facts but for who he was.
So I think he’s more likely to use the threats to chill speech and intimidate people who speak out, because lawsuits would be so difficult for him to prevail in. He would have to meet the actual malice standard of New York Times vs. Sullivan, which is an extraordinarily high standard. He’d be subject to discovery and deposition where he’d be questioned under oath, and then subject to potential perjury charges if he didn’t tell the truth. We’ve seen how that can spiral out of control when a president testifies in a civil case, back during the [Bill] Clinton years. I think he’s more likely to just keep using threats and intimidation tactics rather than lawsuits.
Every president to a greater or lesser degree has an adversarial relationship with the press, and almost every president wants to have it his way and for his side to be heard and not criticized. What’s different about Donald Trump?
It’s not unusual for politicians, presidents, presidential candidates to feel that they’re being treated unfairly, particularly when the duty, the obligation of the press is to examine the pluses and minuses of the candidate, of the president, and to be a watchdog. There’s always a tension, there’s always a degree of hostility, whether it’s a Democratic president or a Republican president.
But there are so many differences here. Never has a candidate threatened to sue news organizations during the campaign. And never has a presidential candidate threatened to sue individual citizens for libel for speaking out during a campaign. Never has a president used social media to demean and denigrate individual citizens or news organizations. Never has a presidential candidate at rallies incited hostility toward members of the press who were there covering him. So he’s another league than anybody else on this and that’s why I think we’re in such a precarious moment for the 1st Amendment.
There are tremendous journalists in this country who have been doing amazing work reporting on the facts, and that’s the kind of thing that has really driven Mr. Trump crazy, when there are absolutely truthful reports on the facts.
A new feature on the social media landscape is deliberate disinformation — I won’t call it fake news because “The Onion” is fake news — but deliberate, provocative disinformation. How does that figure into 1st Amendment issues?
It complicates things enormously, and I think that’s part of the reason it’s being done. It’s basically a disinformation campaign for some that’s meant to undermine truthful actual news reporting. Mr. Trump kick-started his political life by engaging in a form of that with the birther conspiracy that he helped to amplify and spread.
It’s something we have to come to grips with, but the 1st Amendment only goes so far. Knowingly false things that are damaging to people’s reputation or their lives in some way are actionable. It’s the last resort, bringing a libel suit, but there are restrictions.
I think the real threat is to news organizations that are covering important stories, gathering the facts piece by piece and then reporting stories. Then you have people say, well that’s fake too. I’ve heard that a few times in the last week or so, that this story on CNN — that’s fake news too.
We’re talking about the difference between deliberate disinformation, and reporting as much as you can based on the facts you know in an accurate way — those two categories are light years away from each other.
A year ago the big 1st Amendment issue you were dealing with was the question of the contents of the cellphone of terrorists in San Bernardino who murdered people there. You were representing Apple, and it came down to a question of encryption. The FBI argued national security was the trump card in this.
I can’t get into the specifics of that particular case but what I can say is — this is public knowledge — that the FBI was arguing that the courts should have the power to order companies that make cellphones and other devices to create software that would ruin or at least cripple the encryption in a data encryption and the tools that could then be used to get into devices like phones.
The danger of that as we now see is it’s a weakening of data safety, and if ever there were a time when the last thing in the world the government should be doing, including the FBI, is arguing that we should create more tools to make our data more vulnerable in the midst of this Russian hacking-slash-espionage scandal we’re seeing unfold, which I think could not be a more important issue for our nation and the world that we need to be focusing on. The government and I think the national security and defense parts of the government strongly support the notion that encryption is crucial, and that government should not be asking courts to degrade encryption.
Even though law enforcement is important and we need to be able to do as much as we can to pursue wrongdoers and terrorists, data encryption is a national security — is a safety issue, and now we’re seeing it’s an issue that cuts right to our democracy.
Isn’t it interesting that there was in a sense a market solution to this, that the FBI said we’ll pay you if you can find this out for us.
It’s very interesting in the sense that, in the world out here there are contests that people have to hack into different devices. I think the government needs to improve its technical abilities — and I’m not suggesting they don’t have people who are brilliant and know what they’re doing — but whatever they have, they need more. The government, in terms of its own law enforcement needs but also national security needs, needs to be out ahead of everybody as far as they can be.