What Gianforte’s Special Election Victory Teaches About Freedom of the Press

Updated:

Despite the late-breaking news that Republican Greg Gianforte was being charged with misdemeanor assault for body-slamming a reporter, last week Montana voters chose the GOP newcomer to fill the state’s vacant seat in the House of Representatives. Pundits immediately began assessing the implications of the election for the 2018 midterms and beyond. Was Gianforte’s relatively slim six-percent margin over singing cowboy Rob Quist a harbinger of Democratic success elsewhere, given the strongly Republican lean of the state? Or do idiosyncratic factors about this particular race and the Montana electorate limit its utility as a predictive tool?

No doubt those are important political questions, but in this column I shall focus on the voters’ apparent non-reaction to the assault and its disturbing implications for freedom of the press.

Caveats

Any inferences we draw about freedom of the press from the Montana special election must be tempered by a number of caveats. For one thing, roughly half of the voters cast their ballots before the assault story broke. It is possible that some of them would have voted differently if they had waited until election day.

Yet early voting probably played a minor role in diminishing the impact of the assault charge. People who vote early tend to be substantially more committed to their candidate than those who vote on election day. Thus, the people most susceptible to the influence of late-breaking news had not yet voted when the assault story broke.

To be sure, that does not mean that all or even most of the voters who selected Gianforte after the assault charge was announced approved of Gianforte’s conduct. One hopes that most people who voted for Gianforte after the assault charge was announced did so despite the charge rather than because of it.

Such a course of conduct would have been instrumentally rational. Suppose you strongly support a candidate because of his stance on some issue you care about—taxes, environmental regulation, or abortion, say. Even if you learn that the candidate is a criminal, you might vote for him nonetheless because you fear that his main rival would pursue policies you oppose. You cast your ballot as you do, albeit unenthusiastically, because you realize that in a two-party system the question is not whether the candidate is right for the job but whether (by your lights) he is better, or simply less bad, for the job than the most likely alternative.

There is also a technical legal reason we should not equate Gianforte’s victory with an assault on freedom of the press: the First Amendment applies only to censorship by the government. Even though Gianforte was running for public office when he assaulted Guardian reporter Ben Jacobs, Gianforte was still acting as a private citizen.

Free Press Culture

Notwithstanding the foregoing caveats, the Gianforte victory is disturbing. Even if most of Gianforte’s supporters disapproved of his act of violence, newspaper comment boards and social media sites contained a large number of appalling expressions of approval.

Some of the approval of political violence even came from people with a substantial media profile, like right-wing provocateur Laura Ingraham, who took to Twitter to mock Jacobs for getting assaulted with the following tweet: “Did anyone get his lunch money stolen today and then run to tell the recess monitor?” Then, in what might or might not have been intended as a reference to Gianforte’s assault on Jacobs, Texas Governor Greg Abbott joked about shooting journalists.

Although these despicable sentiments are not relevant to the immediate legal protection for freedom of the press, they bear on our constitutional rights.

Our constitutional culture has not yet degraded so far that Gianforte’s conduct was broadly deemed acceptable—but the degradation has begun, and it starts at the top. House Speaker Paul Ryan and House minority leader Nancy Pelosi condemned Gianforte’s conduct and, after his campaign initially sought to deceive the public by blaming Jacobs, even Gianforte himself eventually apologized. But President Trump simply hailed the special election result as a “great win in Montana.”

It is hardly surprising that Trump did not condemn Gianforte’s conduct. Pelosi suggested that Trump is “the model” for Gianforte’s behavior. Perhaps that’s true, but even if not, Trump has contributed to the climate of hostility to the press that characterized the most disturbing comments by Gianforte’s supporters.

All politicians and especially presidents at times find the press a nuisance and occasionally lash out. But Trump has gone considerably further. He has called the press the “enemy of the people” and currently faces a civil lawsuit for encouraging violence against protesters at a political rally.

Trump is playing with fire, and he does not even pretend to care.

In a 1944 speech, Judge Learned Hand famously stated: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.” Hand went on to equate “the spirit of liberty” with the kind of humble search for truth that we associate closely with the First Amendment.

Taken as a whole, the Hand speech makes the fundamental point that even such bedrock legal principles as free speech and free press rest ultimately on culture. In the long run, a society in which it is acceptable for politicians to incite violence or body-slam reporters for asking unwelcome questions will not protect freedom of the press or any other kind of freedom, regardless of what the parchment barriers of our Constitution say.

  • nvlaw

    This article could have ended with “in a two-party system the question is not whether the candidate is right for the job but whether (by your lights) he is better, or simply less bad, for the job than the most likely alternative.” Pretty much all rights are or will be subsumed by the official duopoly institutionalized in the U.S.

  • I would like to submit the idea that much of the problem is with the persona of the media. The media has misused their freedom of the press. This is also the case in other countries like UK, just look at Princess Dianna years back.This was people using the press freedoms. The press in the US has been abusing their freedoms, the Freedom of the Press does not or should not extend to disrupting meeting, other press conferences being set up, fabricating the truth to make a story, or not following through to make sure they are being told the truth. This is the strategies of con artist and dishonorable persons. This is how the public sees the media though not all are that way, the real honorable journalist and media mews persons are overshadow by these pretend journalist / news hacks. The overshadowing is supported by media companies for ratings and as a result sensational news is being ignored by the general public. They just simply do not trust what is being reported or think of the journalist and media sources as lairs totally discounting what they say. News media and journalist are setting themselves up for added restricts and means tests for reporting which is an unfavorable result but may be seen as being needed.

  • Brett

    What is glaringly missing here is any discussion of the violence, attacks on free speech and hatred from liberals, such as the violence at Berkley and Evergreen State University this year against conservative viewpoints, or other limitations on free speech by liberals such as barring conservative speakers at DePaul University; the numerous hate-filled comments during the women’s march in Washington this past January (including Madonna stating that she thinks about blowing up the White House); Kathy Griffin’s vulgar photo of a bloody beheaded head of Donald Trump.

  • Broadsword

    I didn’t hear of any of these vaunted Dems denouncing the riotous assaults and violence in Berkley or the suffocation of speech on our college and university campuses.
    Such cherry picking at best and hypocrisy at its worse Mr. Dorf

  • nukauboi

    Did anyone mention that GG asked the reporter to leave twice, and he had came into a private office without permission. We knew it in Montana, but the Mainstream Media left those facts out. You worry about freedom of the press, but liberals don’t get upset about the campus suppression of anyone they don’t think fits with their liberal ideology. Can’t journalists get back to reporting verifiable facts, not leaks from unnamed sources? It seems that it is clear what their political view is.

  • shonuffharlem

    Lincoln and FDR liberal heroes censored press and threatened them with imprisonment. How many articles you write about that? What about Obama administration admitting lying about calling Fox News reporter unindicted co-conspirator