During a Fox & Friends interview Monday morning, Republican presidential nominee Donald Trump blamed the weekend attacks in New Jersey and New York City on refugees, a lack of profiling by law enforcement, and a basic constitutional freedom.
Trump sounded off on refugees at length — despite the fact that suspect identified by authorities in the weekend attacks is a naturalized U.S. citizen, not a refugee, and that of the hundreds of thousands of refugees resettled in the U.S. since 9/11, only three have been arrested for planning terrorist activities. Later, one of the hosts asked Trump what he would do to stop “people who are radicalized here.”
Trump, in reply, said that “freedom of the press,” a protected constitutional right, was to blame.
“They’re all talking about it so wonderfully because, you know, it’s called ‘freedom of the press,’ where you buy magazines and they tell you how to make these same bombs that I saw” Trump said. “They tell you how to make bombs. We should arrest the people that do that because they’re participating in crime. Instead they say ‘oh no you can’t do anything, that’s freedom of expression.’”
Trump made his comments around minute 21 of this clip:
But Trump nonetheless claimed he’s “totally in favor of freedom of the press,” despite indicating precisely the opposite.
“The websites are the same thing, those people should be arrested. They’re inciting violence, okay? They’re making violence possible. They should be arrested immediately…yet we don’t want to touch them because of freedom of speech,” he said.
Freedom of the press and freedom of expression are both constitutional rights explicitly protected by the First Amendment, which specifically prohibit the government from “abridging the freedom of speech, or of the press.” The protected freedom is vital to a functioning democracy.
Trump, however, is here making a very specific claim — that magazines and websites that tell people how to make bombs are engaging in “incitement.” Incitement is already an exception to the First Amendment, though it does not apply to magazines and websites publishing information that Trump and others would rather not have publicly available. Legally, to prove incitement, prosecutors need to prove that the allegedly guilty party not only intended to incite a crime, but also that their words were likely to make someone commit that crime right away.
It’s a high bar to prove — for which Trump may have reason to be personally grateful. Under a laxer rule, it’s possible that Trump could be charged for incitement himself. In August, his statement that “Second Amendment people” could be able to do something about Hillary Clinton was met with widespread condemnation as a veiled assassination threat. On Friday, he called for Clinton’s bodyguards to “disarm immediately,” adding “let’s see what happens to her.”
Trump’s comments on Monday aren’t the first time he’s indicated his support of free speech only goes so far. Trump has a long history of using lawsuits to attempt to silence critical media coverage, and in his campaign has indicated that he wants to make it easier for wealthy men like himself to control how they are covered in the press.
In February, Trump said he wanted to “open up the libel laws” and planned to do so if he became president, so that it would be easier to sue publications that printed negative press. He also said that publications that have been critical of him, such as the New York Times and The Washington Post, would “have problems” if he’s elected.
“When they write purposely negative and horrible and false articles, we can sue them and win lots of money,” Trump said.
Since then and throughout his campaign, Trump has repeatedly smeared members of the press who have asked him difficult questions and written critical things about him and his family. Just two days ago he reiterated his threat to sue the New York Times on Twitter.
“His statement shows why we need libel protections,” Gregg Leslie, legal defense director for the Washington-based Reporters Committee for Freedom of the Press, told Associated Press in February when Trump threatened to open up libel laws. “Trump gets offended, he gets upset and he wants to sue to retaliate. That’s not a good reason to sue someone.”
Peter Thiel, a Silicon Valley billionaire, recently used a such lawsuit to destroy the media company behind the website Gawker, which has now been shut down. According to reporting from The Huffington Post, Thiel, one of Trump’s only supporters in Silicon Valley, would be a leading candidate for the Supreme Court under a Trump presidency.