As plunging temperatures down to -29C chill the US in early
January 2018 – with snow seen even in Florida – perhaps a more disconcerting
chill might be discerned in President Trump’s comments (and facial expressions)
whilst speaking at a press conference today at Camp David where the legislative
agenda for 2018 will be under discussion.
President Trump asked Mitch McConnell, Republican Senate
Majority leader to contribute from the podium.
Mitch McConnell advocated a right-of-centre position for the
country - the UK's political right being broadly equivalent to the US left
gives that some perspective - and noted his welcome to President Trump's
"spectacular" nominee to the US Supreme Court (Neil Gorsuch) along
with 12 Circuit judges in 2017, "the most in the first year of any
President since the Circuit Court system was set up in 1891".
The US Vice-President, Mike Pence, also noted judicial
appointments to uphold the rule of law and the Constitution as highlights of
Could this, arguably, be considered ‘stacking in the deck’
and anticipating judicial support for President Trump’s policy preferences?
Asked about his reaction to the unflattering image of his Administration
following publication of Michael Wolff's book, 'Fire and Fury', President Trump dismissed Michael Wolff’s
President Trump said – almost in an aside - that the libel
laws in the US are “very weak; if they were strong it would be very helpful. You wouldn’t have things like that happen
where you can say whatever comes into your head.”
Comments made aside the main stream of
discussion, can offer a useful peek behind the veil of political policy.
Emphasis is added, above, to the phrase, “it would be very
helpful” because President Trump paused momentarily at that moment, noticeably
breathing in, his eyes looking up to his top left - where he seemed to be
envisaging a better world - as he expressed that phrase, before switching with an
affirming micro-nod of his head and eyes set back to the journalist who asked
From this little acorn of facial expression regarding US
libel law may grow an oaken policy stance on free speech – certainly set against the kind
of ‘Fake News’ that airs unfavourably against President Trump.
However, even if it proves “very helpful” to throw out the ‘Fake
News’ bathwater with a legislative chill on free speech in the US, the democratic
concern is for the baby in that bathwater.
Not everybody critical of US government policy is
necessarily a pedlar of fake news. Just because what is said is antithetical to
particular political interests does not render the view unworthy.
This may, possibly, have
dawned on President Trump today.
Experts of facial expressions and micro-glances
will also have noted the President’s eyebrows raising to reveal his genuine
surprise as he mentioned that so many of the proponents of ‘Fake News’ had come
to the defence of his “great Administration” in light of the publication of
Michael Wolff’s book. (Whatever its actual veracity the US President is clear that, from his perspective of events, the book is inaccurate).
Interestingly in Bustos v A&E Television Networks (10th
Cir. 2011) Justice Gorsuch (the US President’s US Supreme Court nominee
remember) quoted Robert Burns sage words on libel scratched on the window of a
Justice Gorsuch actually attributes the quote to the English
criminal courts. However, the words, “the more ‘tis a truth sir, the more ‘tis
a libel”, if not Burns’ own were, if memory serves correctly, acknowledged by
Burns as his own – though this may have been nobly – this was Robert Burns
after all - to divert blame from the true author who would have been in hot
water with Buckingham Palace.
Regardless it is a sentiment that Burns would readily subscribe to.
Burns' words were scathing at the paradox that criticism of King
George would be considered a greater calumny the closer it got to revealing the
true character of the King. Worrying, at least from the view of literary
insight, it’s not entirely clear that Justice Gorsuch grasped the chilling
message in Burns' words: Justice Gorsuch stating that the quote sounded
remarkable "to contemporary ears".
It should, really, sound just as much good sense to contemporary ears as to those
of the late1700s.
Interestingly Justice Gorsuch said, “defamation doesn’t vindicate factual
mistakes of consequences only to such insular groups.”
That has interesting
resonance in a largely unregulated virtual world where (with alarming
frequency) defamatory statements can be found in (sometimes insular) online
The group in question was an Ayran prison gang filmed by
A&E in a documentary. The gang itself could, logically, it was proposed, have been offended about a
claim of gang membership that might not have accorded with a factual
distinction between fully-fledged gang membership on the one hand and on the
other hand criminal accessories assisting the gang. But any sensitivity of
reputation in that insular group did not engage the law of defamation said
Justice Gorsuch. Instead what mattered was the perception of reputation in the
eyes of ‘reasonable persons’ - or right-thinking members of society - who would
(rightly said Justice Gorsuch) find even assisting such a prison gang
Justice Gorsuch also noted that the defence – to a defamation
claim - of truth, “has, in comparatively recent years, taken on a constitutional
patina, becoming not just a feature of the common law but a First Amendment
So where does this position Justice Gorsuch if he might be
considered a judicial bellwether relating to Trump policy on US libel law?
An article in the Washington Post online, (1st
February 2017) by Aaron Blake, suggests that Justice Gorsuch is conservative in
his approach – not a judicial activist. Not that this is any measure of the
best judicial approach. Judicial conservatism can wreak as much havoc to the
principle of justice as any maverick judge. Indeed probably more so.
Variety online flag Justice Gorsuch’s judicial integrity
explicit in his comments to the Senate confirmation hearing in March 2017 that
saw his US Supreme Court position established.
Gorsuch said, “When anyone criticizes the honesty or
integrity or motives of a judge, I find that disheartening. I find that
Sen. Richard Blumenthal (D-Conn.), who had been questioning
Gorsuch, asked if that included the president.
“Anyone is anyone,” Gorsuch said.
In his 2016 Sumner Canary Memorial Lecture: Of Lions and
Bears, Judges and Legislators, and the Legacy of Justice Scalia, Justice
Gorsuch gave those concerned that he might be susceptible to subjective
political whim grounds to be reassured saying:
may appeal to their own moral convictions and to claims about social utility to
reshape the law as they think it should be in the future. But… judges should do
none of these things in a democratic society… [J]udges should instead strive
(if humanly and so imperfectly) to apply the law as it is, focusing backward,
not forward, and looking to text, structure, and history to decide what a
reasonable reader at the time of the events in question would have understood
the law to be— not to
decide cases based on their own moral convictions or the policy consequences
they believe might serve society best.”
However it was Justice Scalia (who was partly being eulogized in Justice Gorsuch's lecture) who followed the United States Arbitration Act of 1925 to inhibit the availability of class actions in the US
Supreme Court case of AT&T Mobility v Concepcion, 563 US 333 (2011) where a contractual ‘aside’ - tucked away among the small print of terms and conditions - aimed to prevent the class action
law suits that corporate America found so unwelcome .
A US Supreme Court judge may follow the course of new legislative
developments thus applying the law as it is in light of legislative change.
Would a US Supreme Court judge accord with legislative change that chills press
Whether or not Justice Gorsuch quite grasped the literary and
political context of Burns’ quote, as the judge joins the other chieftains of
the US Supreme Court, the great Scotch bard (whose birthday this month falls
just days after the first anniversary of the President’s having taken office) would
likely have found anybody, such as Justice Gorsuch, offering such integrity in
their words to be, “An honest sonsie” sort.
That should bring the good fortune of integrity to the law
and reassurance to those concerned at any prospect of President Trump’s policy
seeking to chilling speech critical of the most powerful administration in the
word in 2018.
But that luck may depend on what, if any, legislative
changes can be effected in the field of press freedom and just what the US
justices feel might, “serve society best”.
Moreover, the, “constitutional patina”, of the defence of
truth in defamation causes and its becoming a, “First Amendment imperative”,
bring the matter directly into the purview of the US Supreme Court.
As Dredd Scott v Sandford, 60 US 393 illustrates, the US
Supreme Court is not immune to significant ‘self-inflicted wounds’ (Doris
Kearns Goodwin, Lincoln, 2009).