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Monday, August 01, 2016

He has no right . . .

Presumably because he cannot resist, Donald Trump is fighting back against Khzir Khan over his speech at the DNC. In response to Khan's move of asking Trump whether he had read the Constitution, displaying his pocket copy, and offering to lend it to him, Trump tweeted "Mr. Khan who has never met me, has no right to stand in front of millions of people and claim I have never read the Constitution, which is false."

People are having fun with the circularity of this--Trump asserts that Khan has no right to stand in front of millions of people and criticize him, but that right quite clearly is in the Constitution, thereby confirming Khan's point about Trump reading the Constitution. But I want to give Trump the benefit of the doubt. The key is the last clause--"which is false." Trump is not saying Khan has no right to criticize him, only that that Khan has no right to make a false statement about him, or, really, no right to defame him.

So let's break this out and see if Trump is right that Khan had no right to say what he did in front of millions of people.

For starters, this is why I have thought the "pulling out the Constitution" move (historically pulled by Libertarians, but now seemingly fair game) is nonsense as part of a political discussion. The language in the Constitution does not answer most specific questions. For our purposes, Khan does not have a right to stand in front of millions of people and engage in unprotected speech. But the First Amendment's reference to "the freedom of speech" does not tell us anything about what is or is not protected

Diving deeper shows how disturbingly ignorant Trump is about the meaning (beyond the simple words) of the First Amendment.* First, Khan did not say that Trump had never read the Constitution; he asked whether he had and offered him a copy to read. Second, even if Khan's rhetorical question contained an assertion and that implied statement was false, that alone does not mean he did not have the right to say it in front of millions of people, since false statements are not per se unconstitutional.

[*] This is not news, of course. Just another illustration of the obvious point.

The real question is whether, if false, Khan's statement was unprotected defamation that Khan had no right to make. That depends on what Khan was asserting.

In context, the best understanding of Khan's statement is that  Trump proposes policies and makes statements that violate, ignore, or disrespect the Constitution, suggesting a lack of understanding of what the Constitution protects (recall that, after pulling out his pocket copy, Khan pointed to liberty and equal protection, although, curiously, not free exercise, as concepts within it). Whether Trump has actually, literally "read" the Constitution is beside the point that Khan was making--someone could read the Constitution and still act contrary to it. So saying Trump has not read the Constitution is rhetorcal hyperbole, not meant literally or as a provable fact, but only as overstatement to make a larger point. The assertion that Trump's policies are contrary to the Constitution should be protected as an opinion, an expression of the speaker's own constitutional views, that is not provably false and that cannot form the basis for defamation liability. Finally, even if Khan was asserting as fact that Trump has not read the Constitution, I am not sure that is defamatory. Most people have not read the entire Constitution and there is nothing negative about not reading the whole thing; the harm comes from the negative  implication that someone who has not read the Constitution lacks knowledge or respect for it, which, again, is protected opinion.

So while it is not as simple as those on Twitter and Reddit are saying, the point is accurate--Khan had a clear constitutional right to say what he did and the suggestion from a presidential candidate to the contrary is wrong as a matter of established First Amendment law.

By the way, am I the only one imagining Trump, sitting in a gold-plated bunker, doing this:


Posted by Howard Wasserman on August 1, 2016 at 10:17 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink


And to follow up on Asher's examples, the reason that people so often use "no right to say" to mean "normatively wrong to say" is that it conveys something more than just "factually wrong to say" -- namely, that the factual error is culpable, rather than innocent. In other words, not only was the statement factually erroneous, but the nature of the error rendered the making of the statement normatively wrong -- i.e, "no[t] right."

In this particular case, Trump deemed the alleged error about whether he's read the Constitution not just factually incorrect, but normatively wrong because Khan has never met him and thus has no first-hand basis for his factual assertion -- which is why the very first thing he said is that Khan had never met him, an emphasis that makes perfect sense on our reading of his statement yet is inexplicable on your reading of his statement.

Posted by: Hash | Aug 5, 2016 10:50:18 AM

Perhaps you haven't ever used "no right" in that way, but I bet it's used about ten times more than your "you are wrong in what you said about me" or "it was wrong for you to say what you said" to express the same thing, and that you know a lot of people who use "no right" in a normative, non-legal sense. Googling "you have no right to say" (which excludes alternate formulations, like "you have no right to call me..."), here are some of the things that come up on the first page:

Sir Robert Peel saying that "you have no right to say from the results of the elections hitherto, that the opinion of the constituencies differs from that of their representatives";

A quote of someone saying "if bad laws are made, and you did not go to the polls when you might, you have no right to say a word against them";

A character in a romance novel - this is quite apposite - exclaiming "You have no right to say that. No, even you have no right, for you didn't know him" in reply to a derogatory comment about a deceased man's sexual habits;

A character in "T-Dot Griots: An Anthology of Toronto's Black Storytellers" remarking "I want to be angry and don't you stop me. You have no right to say anything. I'm not going to let you say anything. I'm just going to tell you you can't say anything so you can see how it feels to be me..."

Henri Poincare rhetorically addressing logicians: "You have no right to say to us: 'It is true we make mistakes, but so do you.' For us to blunder is misfortune . . . for you it is death.";

A Reddit post about a fat person who told a thin person she "ha[d] no right" to complain about her weight, because she was thin.

On the next page, you get a blog post entitled "You Have No Right To Say I Can't Own One More Gun," a post entitled "If you haven't tried it, you have no right to say cheerleading isn't a sport," Antigone, in Sophocles' Antigone, rebuffing Ismene's offered admission of guilt with "You have no right to say so [that she was guilty]. You would not help me, and I would not have you help me," and someone questioning "why is it wrong for those who pay taxes to say to the non-taxpayer, 'You aren't paying anything, so you have no right to say how much the rest of us have to pay. . . .'"

Posted by: Asher Steinberg | Aug 5, 2016 10:07:01 AM

I don't believe I have ever said someone had no right to say something as a way of challenging what they said. If I want to say that someone was normatively wrong in what he said (i.e., "I have so read the Constitution"), I would say "you are wrong in what you said about me." It seems a really odd way of saying that what Khan said was factually wrong.

Posted by: Howard Wasserman | Aug 4, 2016 3:13:28 PM

Agree with Asher. People throw around the expression "you have no right to say X" all the time without meaning "you have no legal right to say X." Outside of courts and lawsuits, I generally assume that the speaker means "it was wrong of you to say that." DJT has said and done other things that show either ignorance of or disregard for the First Amendment, but this isn't one of them. In my opinion, the number of overwrought and unfair critiques of DJT (like this one) tend to detract from the force of the serious, fair ones.

Posted by: guilty bystander | Aug 4, 2016 12:10:44 PM

Let's remember that the perhaps more important and underlying issue is whether a ban or other restrictions on immigration of persons based upon their religion (in this case, being Muslim) would clearly be unconstitutional and un-American.

These are related issues are addressed in my widely-cited:

President Obama is Wrong on the Law; Trump Mostly Right On Muslim Ban

Posted by: LawProf John Banzhaf | Aug 4, 2016 9:05:05 AM

Howard, you're incorrect about the import of Trump's emphasis of the point that Khan had "never met" him. It's true that whether they'd met would be "irrelevant" *if* Trump were objecting to Khan's legal suggestion that Trump's positions are unconstitutional. But that's precisely why Trump's emphasis of the meeting point indicates instead that Trump was objecting to Khan's factual suggestion that Trump has literally not read the Constitution: the fact that the two have never met is obviously relevant to whether Khan's assertion was factually correct; namely, because Khan has never met Trump, he has *no first-hand basis* for the assertion that Trump has never read the Constitution, and thus necessarily must be relying on *hearsay, inference, or speculation,* which undermines the persuasiveness of his assertion. Whereas, if he had met Trump, then it's at least possible he could have been relying on first-hand knowledge based on his meeting with Trump (i.e., if Trump had said as much to him). To be sure, as you note, meeting Trump isn't a sufficient condition to obtain first-hand knowledge of whether Trump has read the Constitution; but, as you ignore, it is a necessary condition to obtain such first-hand knowledge. Thus, the absence of such a meeting is quite relevant in criticizing Khan for making a factual suggestion that Trump has never read the Constitution. More importantly, that the absence of a meeting is indisputably irrelevant to Khan's legal suggestion while being of at least some relevance to Khan's factual suggestion clearly supports the ultimate point that matters here: that Trump's emphasis on the absence of a meeting is evidence that he was objecting to Khan's factual suggestion, not Khan's legal suggestion. Even more importantly, you still haven't addressed the more fundamental point that Asher and I both made: namely, that when Trump objected to Khan's factual suggestion, he used the phrase "no right" to mean *normatively wrong*, not *legally unprotected* -- contrary to the key premise of your entire post.

Posted by: Hash | Aug 1, 2016 5:28:42 PM

To be sure, his statement can be interpreted as if it were a legal scholar's assertion about the present state of defamation law. But I'm pretty sure that was not what it was.

Nor do I think it was a legal scholar's assertion about the present state of communications law. I'm just pointing out that assuming a legal context, the term 'right' is pretty slippery. And I'm pretty sure he wasn't using it in the Hohfeld sense either.

There's circularity here only if you are choosing to see circularity. But, carry on. Sorry to intrude.

Posted by: Toby | Aug 1, 2016 3:32:47 PM

I hate when snark goes awry! Of course Trump has read the Constitution -- all TWELVE articles of it, according to him.

Posted by: Kevin Jon Heller | Aug 1, 2016 3:14:31 PM

Of course it's defamatory. Trump HAS read the Constitution -- all seven articles of it.

Posted by: Kevin Jon Heller | Aug 1, 2016 3:13:45 PM

Toby: There is no right to stand in front on the DNC as against the DNC. There is no right to stand in front of a broadcast audience as against the FCC or a network with a telecasting license. But if the DNC invites someone to speak at its event and if the license owners broadcast that speech, he has an absolute right as to Donald Trump to say whatever he wants.

The part about never meeting Trump is beyond irrelevant. My right to speak out about someone is entirely unaffected by whether I have met them in person, regardless of what Khan was saying. If I meet someone one time for five minutes, I cannot possibly know one way or another whether that person has read the Constitution. Frankly, I doubt most of my friends (except the ones who teach/write in Con Law) have read the entire Constitution.

Posted by: Howard Wasserman | Aug 1, 2016 2:52:34 PM

Similarly, I don't have a legal right to stand on the DNC stage. That's entirely up to the DNC; there's no right of access I can sue to enforce. Correct me if I'm wrong.

Posted by: Toby | Aug 1, 2016 2:37:38 PM

If I remember my communications law class correctly from twenty years ago, I don't have a legal right to stand in front of a TV broadcast audience. Spectrum scarcity and all that.

Posted by: Toby | Aug 1, 2016 2:35:29 PM

PS. My reading of Trump's statement is bolstered by the initial clause about how Khan has "never met" Trump. The fact that Trump started with that point confirms that he was complaining about a perceived assertion of fact by Khan that Trump literally has not read the Constitution, not an opinion of law by Khan that Trump's policies are unconstitutional.

Posted by: Hash | Aug 1, 2016 2:33:42 PM

Howard, like Asher, I think you're overreading Trump's statement. He was pretty clearly using "no right to say" in the colloquial sense that Asher suggests (wrong to say), not in the legal sense that you suggest (unprotected to say).

Nor did Trump say that it would be wrong (whether or not protected) for Khan to "criticize the possible President" or to say what you assert is the "best understanding" of his statement "in context" (i.e., that Trump's policies are unconstitutional); rather, Trump only said it would wrong (whether or not protected) for Khan to falsely accuse Trump of not having read the Constitution as an actual, literal matter -- and it would indeed be wrong for Khan to make such a false accusation.

In short, with respect to this particular statement by Trump, the worst thing that he did was to interpret Khan's statement in an uncharitable way that was not the best in context. Which is ironic, since it's exactly what you've done to Trump's statement.

Posted by: Hash | Aug 1, 2016 2:29:45 PM

Unfitness for office is obviously opinion. Or at least not said with actual malice.

And if Trump himself was not actually asserting that Khan's statements were not protected, it becomes even more troubling as an expression of Trump's views. Because he now really is suggesting that a US citizen should not criticize the possible President of the US.

Posted by: Howard Wasserman | Aug 1, 2016 12:06:35 PM

I don't interpret Trump's remark as a statement about Kahn's legal rights, or the legally defamatory nature of his remarks. (It's more along the lines of "you have no right to call me stupid!", or other utterances along those lines that people make thousands of times a day.) I'm not sure if you really do or are just kidding. As far as whether an assertion that Trump hadn't read the Constitution would be defamatory, I think it might be given that Trump is running for President and the statement suggests (and is intended to suggest) his unfitness for the office in a factual way. Of course, a statement that he hadn't read the entirety of the Constitution wouldn't be defamatory, as you explain, but a non-hyperbolic claim that he hadn't read any significant part of it could be.

Posted by: Asher Steinberg | Aug 1, 2016 10:26:27 AM

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