« Ode to a District Judge | Main | The AALS Annual Meeting: A Partial Defense and Some Mild Reform Proposals--Part I: "Why Law Matters?!?" »

Monday, January 02, 2017

Why We Need to Talk about Trump & Press Freedom

On Wednesday, January 5, AALS2017 kicks off with a panel on Trump & Freedom of the Press in the Plaza Room Lobby Level of the Hilton Union Square at 8:30 am.

RonNell Andersen Jones (Utah), Amy Gajda (Tulane), Sonja West (Georgia), Erwin Chemerinsky (UCI), John Diaz of the San Francisco Chronicle, and I will be discussing what the Trump presidency might bode for press freedom. In preparation for the panel, I thought I'd share with you the research I've done suggesting why this discussion is necessary and timely. In short, here are the reasons that the media (and those of us who value the role they play in our democracy) have legitimate causes for concern that press freedom might be curtailed during the Trump Administration. 

First, Donald Trump has shown himself to be remarkably thin-skinned about unflattering press coverage. Throughout his campaign and after, he has publicly berated  Saturday Night Live, the New York Times,  and many, many other news organizations and individual journalists (too many to enumerate here, as is evident from this list compiled by MediaMatters.org) for criticizing him or simply for covering him.  Shortly after the election, he called television news anchors and executives to Trump Tower  to browbeat them for their "dishonest" and "short sighted" and "outrageous" election coverage. He singled out CNN and NBC as the "worst," calling CNN "liars." All of this seems a bit churlish from a candidate who got at least $2 billion worth of free air time from these same media actors and did not hold a press conference from July 2016 until the end of December.  Nonetheless, it suggests that the relationship between this President and the press will not be a smooth one. 

However, more alarming than Trump's propensity to take offense at even the most innocuous press criticisms was his propensity to incite supporters against the press during his campain. Certainly other elected officials have villified and will doubtlessly continue to villify the press to score political points (think VP Spiro Agnew's "nattering nabobs of negativism").  However, Trump turned up the heat beyond anything previously seen. As Margaret Sullivan wrote in The Washington Post, "Donald Trump made hatred of the media the centerpiece of his campaign. Journalists were just cogs in a corporate machine, part of the rigged system." During his campaign events, he restricted press to a "pen" and then inflamed his supporters by calling them dishonest and accusing them of rigging the election and inventing stories to discredit him. His supporters often responded with boos, ugly gestures, and chants of "liars", "assholes," "CNN sucks!," and worse, causing some reporters to fear for their safety.

Trump further displayed a lack of appreciation (or perhaps contempt?) for pool reporters by denying them traditional avenues of access. Unlike previous candidates, Trump never allowed the press on his plane. He also revoked credentials  or denied credentials of those who garnered his special ire.  Although Trump has promised to have a "normal" press pool as president, he's shown a willingness since being elected to deny pool coverage of important meetings and to ditch his press pool at will. He's also stated he may change the format of press briefings, in an as yet unspecified way.  On a somewhat more positive note, he has  granted interviews to several outlets since his election, including The Today Show, 60 Minutes, The New York Times, The Wall Street Journal, and Time Magazine, though his anti-media rhetoric and disrespect for traditional channels of access cast doubt on whether this trend will continue once he's in office.

Other causes for concern about Trump's respect for press freedom abound. During the campaign, he promised, if elected, to "open up libel laws" to make it easier for public figures to sue the press, a threat that betrays a fundamental misunderstanding of libel law and constitutional constraints on the President. More alarmingly, Trump has shown a propensity to threaten lawsuits against journalists or actually sue over both innocuous criticisms and normal news coverage. As an ABA report revealed, "Trump and his companies have been involved in a mind-boggling 4,000 lawsuits over the last 30 years and sent countless threatening cease-and-desist letters to journalists and critics. But the GOP presidential nominee and his companies have never won a single speech-related case filed in a public court." Defending libel suits is expensive, even if one ultimately wins; thus, the mere prospect of being sued for libel can have a chilling effect on reporting. In fact, there's evidence that Trump's reputation as a "libel bully' has already chilled some speakers and is likely to chill others.  

Beyond that, Trump has praised ruthless dictators who have trampled press freedoms and targeted journalists for assassination. In fact, when asked if his praise of Vladimir Putin was tempered by Russia's killing of journalists, Trump said no:  “He’s running his country, and at least he’s a leader, unlike what we have in this country.” Such rhetoric would be chilling, even in isolation, but of course it is not in isolation.

Meanwhile, Trump comes into office on the heels of a President who has already eroded the press's ability to perform its watchdog role by aggressively pursuing leaks investigation against government employees, subpoenaing reporters to reveal confidential sources, and monitoring telephone and email records of journalists in service of leaks investigation. As Dana Priest of the Washington Post stated: “Obama’s attorney general repeatedly allowed the F.B.I. to use intrusive measures against reporters more often than any time in recent memory. The moral obstacles have been cleared for Trump’s attorney general to go even further, to forget that it’s a free press that has distinguished us from other countries, and to try to silence dissent by silencing an institution whose job is to give voice to dissent.” President-Elect Trump has not signaled whether he will continue such practices, but the fact that his former campaign manager  said that the executive editor of the New York Times should be in jail for publishing Trump's tax returns doesn't exactly inspire confidence. Trump also has not signaled how executive agencies within his administration will be directed to handle Freedom of Information Act requests, and although an RNC spokesman has praised the transparency of the Trump transition, Trump's previous treatment of the press, together with his refusal to release his tax returns, certainly gives reason for doubt on this score as well.

In addition to these causes for concern, the media have their own issues that may hamper their ability to perform their watchdog role during the Trump presidency. Trump is a genius at newsjacking. He is able to set the agenda of the media with his tweets and drown out negative coverage. Trump's "Hamilton" tweet, for example, garnered more eyeballs than the $25 million settlement of a fraud suit against Trump University. Meanwhile, the struggle to maintain press freedoms comes at a time when the public's views toward the media are increasingly hostile, many segments of the media face revenue challenges, and fake news undermines the role of legitimate journalism in furthering democratic self-governance. [Not to mention that "post-truth" was the OED's 2016 word of the year.] These issues, and many more, will give the Trump & Press Freedom panel ample fodder for discussion. I hope you can join us. 

Posted by Lyrissa Lidsky on January 2, 2017 at 07:37 PM in Constitutional thoughts, Current Affairs, First Amendment, Lyrissa Lidsky, Torts, Web/Tech | Permalink


It seems quite possible that one can conclude both that Trump does not clearly pose a threat to freedom of the press *and* that we need to talk about press freedom. That is, one might conclude that some of the concerns that have been raised are premature or overblown, and that some of Trump's statements and actions with respect to the press are idiotic, bad policy, counter-productive, and what have you, but do not pose a serious danger to the freedom of the press. "Newsjacking," for example, may be a poor use of Trump's limited time and resources and of ours, but attempting to steer the agenda of public and press attention is a timeworn and to some degree necessary function of presidents and other politicians, and is regularly used in a way that steers our attention to pseudo-events rather than the most important issues. And we can question, without necessarily questioning the fundamentals of freedom of the press, the value of the presidential press pool; indeed, many serious journalists themselves think that sentencing tons of reporters to wait outside the press briefing room for handouts and the occasional camera-ready dumb-show of a press conference, instead of keeping them outside the press room and busy hunting up leaks and doing investigative reporting, is a terrible misallocation of resources. But we could still conclude that the regime change, some of Trump's statements or actions, and his general success at eliciting some measure of popular support despite the fairly transparent eagerness of the establishment press to defeat him during the election campaign, provides an excellent opportunity both to think about the role of the press and about freedom of the press.

Any full discussion of these issues, I think, would have to consider not only Trump and the executive branch itself, of which the most important aspect would probably not be things like exclusion from the press pool but the application of FOIA and other means of access to cabinet departments, agencies, and the federal bureaucracy (as well as to the private or public-private affairs of the Trump organization outside the official channels of the executive branch), but press coverage of and relations with Congress and the possibility of press-protective laws by that branch. It would also, in keeping with the general, Damascene rediscovery of federalism, have to consider the state of press freedom in the states and local governments, and the possibility of press-protective state laws or practices. It would have to consider whether and how the press used or misused its resources and gained or lost public trust in the press as an institution, both during and long before this campaign. It would have to consider the decreasing number of newspapers and of institutional resources for serious investigative reporting, as opposed to the aggregation-and-commentary that comprises so much of the "press's" output these days, both online and in print. (How many stories in the Times or Post these days consist of nothing more than reprinting other people's intemperate tweets?) It would have to ask whether it has really been a good idea either for the press to take on a more openly opinionated (as opposed to adversarial but professional) role, and--at least in my view--what it means for the press, and perhaps for press freedom, that so many reporters are clearly *expected* by their bosses to maintain an active *and opinionated* presence on Twitter and other social media. The flaws of he-said, she-said and "just-the-facts" reporting have been chewed over endlessly, but they may be better fitted to current libel law and a better ground on which to defend robust constitutional protections for the press under libel law. In keeping with the question whether institutions function better, and are better protected, when they are large but diffuse or small but cohesive, you might ask whether newspapers and other media organizations are better off trying to compete online, with the changes in content and in resource-allocation that involves, or should try to do less but do it better; Politico's Fourth Estate column had a piece on this a while back, if I recall correctly (and I may not). In short, a useful discussion of Trump and press freedom would, I think, also include a fair measure of press criticism: Given both Trump's successes and the seriously declining degree of public trust in the press as an institution, and the press's apparent inclination--incentivized in part by its desire to survive in a fragmented media market--to double down on some of the approaches that have diminished that trust, preserving and entrenching press freedom may require some serious thought about what the press keeps doing wrong (as well as right), and why. And it would usefully expand to consider jurisdictions and individuals other than Trump and the executive branch.

Posted by: Paul Horwitz | Jan 3, 2017 9:07:27 AM

I'm quite libertarian on First Amendment issues, which increasingly puts me on the "conservative" side of First Amendment issues--the side that defends the speech rights of alleged cyberbullies, those who allegedly make "threats" in social media (my newest article), conservative students who challenge the prevailing orthodoxies on college campuses, and even rich people who wish to fund ads during elections. I dare to hope that Trump will be no worse than Obama was for the press, but, having devoted my career to the proposition that a free press is essential to our democracy, I would worry about anyone who has made vilification of the press a central part of his/her campaign.

I can't speak for my fellow panelists.

Posted by: LBLidsky | Jan 2, 2017 11:20:39 PM

Out of curiosity, is anyone on the panel either a Trump supporter or else an opponent who nonetheless thinks Trump does not pose a significant threat to freedom of the press?

Posted by: Orin Kerr | Jan 2, 2017 10:55:04 PM

The comments to this entry are closed.