I don’t know.
The sitting president has accused his predecessor of an act that could have gotten the past president impeached. That’s not your ordinary exercise of free speech. If the accusation were true, and President Barack Obama ordered a warrantless wiretap of Donald Trump during the campaign, the scandal would be of Watergate-level proportions.
But if the allegation is not true and is unsupported by evidence, that too should be a scandal on a major scale. This is the kind of accusation that, taken as part of a broader course of conduct, could get the current president impeached. We shouldn’t care that the allegation was made early on a Saturday morning on Twitter.
In a rule of law society, government allegations of criminal activity must be followed by proof and prosecution. If not, the government is ruling by innuendo.
Shadowy dictatorships can do that because there is no need for proof. Democracies can’t.
Thus, an accusation by a president isn’t like an accusation leveled by one private citizen against another. It’s about more than factual truth or carelessness.
The government’s special responsibility has two bases. One is that you can’t sue the government for false and defamatory speech. If I accused Obama of wiretapping my phone, he could sue me for libel. If my statement was knowingly false, I’d have to pay up. On the other hand, if the president makes the same statement, he can’t be sued in his official capacity. And a private libel suit mostly likely wouldn’t go anywhere against a sitting president — for good reason, because the president shouldn’t be encumbered by lawsuits while in office.
The second reason the government has to be careful about making unprovable allegations is that its bully pulpit is greater than any other. True, as an ex-president, Obama can defend himself publicly and has plenty of access to the news media. But even he doesn’t have the audience that Trump now has. And essentially any other citizen would have far less capacity to mount a defense than Obama.
For these reasons, it’s a mistake to say simply that Trump’s accusation against Obama is protected by the First Amendment.
False and defamatory speech isn’t protected by the First Amendment.
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