It was hard to imagine Donald Trump making himself more absurd and contemptible, but he has managed to do it.
First, he responds to an attack ad from the Club for Growth by having his lawyers send a letter threatening to crush them with legal costs. Jonathan Adler at the Volokh Conspiracy explains why “that dog won’t hunt.”
Trump may well decide to sue, but his case has no legal merit. Even if it were possible to sue a group for allegedly misrepresenting a political candidate’s positions in the midst of a campaign, Trump’s case would founder because it is not defamation to cite a candidate’s past positions, even if they are fifteen years old. Whatever Trump says his position on taxes is today, he has called for tax increases of various sorts in the past, and there is nothing defamatory about reminding voters of those facts and using a politician’s past statements and positions to cast the politician in a bad light. (More on the absurdity of Trump’s legal case here.)
I assume Trump’s lawyers are aware that his suit has no legal basis. The threat of the lawsuit is not that Trump would win, but that the filing of such a suit would force the Club for Growth to defend itself, and that such a defense could be costly. This is what is commonly known as a SLAPP suit — a suit that’s designed to shut people up. “SLAPP” stands for Strategic Lawsuit Against Public Participation and the idea is that well-financed plaintiffs can use lawsuits, and the threat of suits, to discourage speech that they don’t like. Many jurisdictions have anti-SLAPP statutes that are designed to prevent just this sort of vexatious litigation, however, so if Trump decides to sue, he’ll have to choose his venue carefully.
Next, he goes ballistic and tries to get the FCC to fine another critic:
On Wednesday’s Fox News “The Kelly File” program, National Review’s Rich Lowry said:
Last debate, let’s be honest, Carly cut his balls off with the precision of a surgeon and he knows it.
[A]s others have pointed out, the FCC’s authority to regulate vulgarity extends only to over-the-air broadcasting. Fox News Channel, as I understand it, is solely on cable, and on cable you can say much worse than “balls” (as much cable entertainment has shown us).
But beyond that, this sort of use of “balls” in this context is likely not sanctionable by the FCC. The FCC’s “indecency” rules are notoriously vague (though they were upheld against a First Amendment challenged by a 5-4 vote in FCC v. Pacifica Foundation (1978)). But this sort of isolated, non-sexually-themed, and not highly vulgar figurative usage is unlikely to qualify as “indecent.” Indeed, even a more sexual-innuendo-filled reference to “balls” was found not to be indecent in In re Application of Saga Communications of Ark. (2008)
A trifecta! Bullying and bad legal analysis times two (FCC lacks jurisdiction and the comment wasn’t “indecent”).
This is the guy with the dead weasel on his head whose appeal is supposed to be a combination of political incorrectness and a tough negotiating ability that will have thugs like ISIS trembling in their boots. Yet when confronted by the mild and sharp tongued Rich Lowery, he attacks with bombastic tweets.
I think the fat lady is singing. Maybe Carly cut his balls off — or maybe Dorothy did.
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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)