Scarborough’s co-host and wife Mika Brzezinki is calling for President Donald Trump to be banned on Twitter after he resumed his bizarre pushing of a conspiracy theory that Joe Scarborough murdered an intern in 2001. I have long denounced the President’s use of the tragic story of Lori Klausutis as callous and wrong.  There is not a shred of support for this claim and the constant tweets from the President only adds to this tragedy for the Klausutis family.  As I noted yesterday, “politics ain’t beanbag” but it is also not a license for such malicious slandering of your critics.  Having said that, I do not support the effort to ban Trump from Twitter. I have written repeatedly about the danger posed by calls from politicians for increased censorship on social media and the Internet.  Indeed, I criticized Trump recently for such banning of opposing views from his Twitter account.

President Trump has been calling for an investigation into the death of Klausutis as a foil to use against Scarborough, one of his best known critics.

Despite many of us roundly condemning his use of this tragedy, the president returned on Sunday to the subject.  He called again for an investigation in “Psycho Joe Scarborough.” He asked “So a young marathon runner just happened to faint in his office, hit her head on his desk, & die? I would think there is a lot more to this story than that? An affair? What about the so-called investigator?”

He also questioned the findings of the autopsy and suggested that Scarborough left Congress mysteriously after the death: “A blow to her head? Body found under his desk? Left Congress suddenly? Big topic of discussion in Florida…and, he’s a Nut Job (with bad ratings). Keep digging, use forensic geniuses!”

One does not have to search for “forensic geniuses” to reject this salacious and sad conspiracy theory.  The autopsy revealed that Klausutis had an undiagnosed heart condition which caused her to pass out and hit her head as she fell.  Not only did the coroner rule out a blow from another person, but Scarborough was not even in town. He was in Washington.  Moreover, Scarborough had announced that he was leaving Congress a month before this death. 

The President would be just as credible in arguing that Big Foot did it.  There has to be some modicum of decency and civility left in our politics.  Regardless of how some may feel about Scarborough and Brzezinski, this is beyond the pale for any person who believes in such values.

Thus, I do not blame Brzezinski for being angry. She has also been the subject of reprehensible attacks by President Trump.  However, Brzezinski told her Twitter followers “A call is being set up with @jack and the GC,” referring to Twitter CEO Jack Dorsey and the company’s general counsel. “At what point is @Twitter a part of this?” Brzezinski tweeted and called on Dorsey to “TAKE DOWN TRUMP’S ACCOUNT – the world world [sic] be safer.”

This would not make “the world safer.” It would also not silence President Trump. It would further fuel the movement toward speech regulation and censorship.  All of the parties involves are public officials or public figures.  That comes with the sad reality of being the such of unhinged and unfair attacks.  Over fifty years ago, the Supreme Court handed down New York Times v. Sullivan to add protections for such speech criticizing public officials, and later public figures.  It is a protection of the free press and free speech that President Trump has often railed against.  The “actual malice” standard requires a showing that the newspaper published a false report with either actual knowledge of its falsity or a reckless disregard of the truth.  Imposing a high standard for proof of defamation, Brennan sought to give the free press “breathing space” to carry out its key function in our system. In his concurrence, Hugo Black stated: “The half-million-dollar verdict does give dramatic proof . . . that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials. The factual background of this case emphasizes the imminence and enormity of that threat.”

These tweets are opinion, which are protected under New York Times v. Sullivan — the very standard that Trump has denounced.  As we have previously discussed, simply saying that something is your opinion does not automatically shield you from defamation actions if you are asserting facts rather than opinion. However, courts have been highly protective over the expression of opinion in the interests of free speech. This issue was addressed in Ollman v. Evans 750 F.2d 970 (D.C. Cir. 1984). In that case, Novak and Evans wrote a scathing piece that attacked a professor at New York University, Bertell Ollman. Judge Kenneth Starr wrote for the D.C. Circuit in finding no basis for defamation. This passage would seem relevant for secondary posters and activists using the article to criticize the family:

The reasonable reader who peruses an Evans and Novak column on the editorial or Op-Ed page is fully aware that the statements found there are not “hard” news like those printed on the front page or elsewhere in the news sections of the newspaper. Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the newspaper. National Rifle Association v. Dayton Newspaper, Inc., supra, 555 F.Supp. at 1309. That proposition is inherent in the very notion of an “Op-Ed page.” Because of obvious space limitations, it is also manifest that columnists or commentators will express themselves in condensed fashion without providing what might be considered the full picture. Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column like Evans and Novak will therefore predispose the average reader to regard what is found there to be opinion.

A reader of this particular Evans and Novak column would also have been influenced by the column’s express purpose. The columnists laid squarely before the reader their interest in ending what they deemed a “frivolous” debate among politicians over whether Mr. Ollman’s political beliefs should bar him from becoming head of the Department of Government and Politics at the University of Maryland. Instead, the authors plainly intimated in the column’s lead paragraph that they wanted to spark a more appropriate debate within academia over whether Mr. Ollman’s purpose in teaching was to indoctrinate his students. Later in the column, they openly questioned the measure or method of Professor Ollman’s scholarship. Evans and Novak made it clear that they were not purporting to set forth definitive conclusions, but instead meant to ventilate what in their view constituted the central questions raised by Mr. Ollman’s prospective appointment.

The same analysis would apply here.  Brzezinski has over a million Twitter followers and a popular morning show on national television. She does not need to seek to bar people from speaking to address untruths.  Indeed, the Trump tweets have led to a barrage of condemnations. including Republican members and Fox News journalists.  It is an example of good speech correcting bad speech.

These tweets were, as I have said repeatedly, unspeakably wrong.  However, compounding that wrong with a call for censorship is not the answer.