Two events in my life recently have made me think more about Donald Trump’s “birther” charges than I might otherwise.
The first reason the birther thing is on my mind is because I have just started the section on defamation in the Media Law class I teach at UC Law School. One of the points I typically make is that one statement may constitute several slanders. For example, we talked last week about a New York case where the court struggled with whether it could be deemed defamatory to call someone a homosexual. The point is that just because something is false does not make it defamatory. The statement also has to be derogatory. If someone said I used to play center field for the Cincinnati Reds, that would be false, but in no way derogatory.
The New York court was reluctant to find that a statement mischaracterizing someone’s sexual orientation was derogatory, because that implies that there is something wrong about being gay. And so holding feeds into bigotry. But in class we talked about how a plaintiff could address that issue. One way would be to argue that if the plaintiff held himself out as heterosexual, the claim that he is gay essentially is accusing that person of being a liar. And that implication could form the basis of the claim.
And that is relevant to the birther issue. When Trump touted that President Obama was not born in the United States—with absolutely no basis, or when he claimed his investigators were finding “unbelievable” material in Hawaii, he was not merely saying that President Obama was not a natural born U.S. citizen. He was quite simply calling President Obama a liar. President Obama (correctly) claimed he was born in Hawaii. If he wasn’t (and he was) then he was consistently lying. That’s defamation.
In addition, President Obama ran for the office of President. One must be a natural born citizen to run for that office. So, in his baseless accusations, Trump was calling President Obama a criminal. If Trump was telling the truth (he wasn’t) President Obama was committing election fraud. Once again, defamation. The constitutional standard for defaming a public figure is actual malice – “a reckless disregard for the truth or falsity” of a statement. Recklessness is Trumps standard operating procedure.
The other reason the birther thing is on my mind is a book I’m reading called Lincoln and the Power of the Press by Harold Holzer. It hits two of my sweet spots – American history and journalism. I just finished the part of the book that talks about the Cooper Union speech. Holzer considers that speech the turning point in Lincoln’s political career.
In the speech, Lincoln made the following comment: “persisting in a charge which one does not know to be true, is simply malicious slander.” That is as succinct a description of Donald Trump and his birther claims as anything I’ve read. So a little over 150 years ago, Honest Abe was able to nail The Donald. Without the benefit of Twitter even. Impressive.