Protect Democracy Joins Take Care to Launch Forum on Press Freedom and the First Amendment
- September 19, 2017
Protect Democracy wrote an initial post at Take Care to kick off a collaborative discussion on the threats to the free press and dissent under the Trump Administration. A number of esteemed legal and media-focused voices are lined up to participate, and to help develop effective legal protections for the principles enshrined in the First Amendment.
Update: Read additional contributions to the forum:
- Nancy Leong (University of Denver Sturm College of Law): “A Free Press Requires a Strong and Independent Judiciary”
- Mark Joseph Stern (Slate Magazine): “Aiming the Bully Podium at Minority Communities”
- Charlotte Garden (Seattle University School of Law): “Free Speech Solidarity”
- Sonja West (University of Georgia Law School): “The Bully and the Press”
- Michael Dorf (Cornell Law School): “Trump’s potential violations of free speech and press have much in common with his apparent violations of other constitutional limits”
- RonNell Andersen Jones (University of Utah Law School) & Lisa Grow Sun (Brigham Young University’s J. Reuben Clark Law School): “Constructing the Press as Enemy”
- Sabeel Rahman (Brooklyn Law School): “Protecting Against Arbitrary Government”
- Leah Litman (University of California, Irvine, School of Law): “State Action Doctrine Under An Autocrat”
- Robert Post (Yale Law School): “Friends, Enemies, and Trump’s First Amendment Violations”
The Bully Podium: Is the First Amendment Defenseless?
It’s now clear that President Trump poses unprecedented threats to freedoms of speech and press. Take Care and Protect Democracy have teamed up to encourage analysis of how best to defend the First Amendment. Over the coming weeks, we will host a forum in which leading scholars consider how we can use the law (and litigation) to protect against Trump’s use of the “bully podium.”
By Anne Tindall and Ben Berwick
Last Monday night, ESPN anchor Jemele Hill tweeted that President Trump is a “white supremacist” and “an unfit, bigoted, incompetent moron” who is “unqualified and unfit to be president.” While this is certainly scathing criticism, it is hardly remarkable in today’s political climate. Hill is not the first person to level such accusations at the President; nor is Trump the first President to be the target of such accusations. As others have pointed out, President Trump himself accused President Obama of being a racist and a secret member of—or at least sympathizer with—ISIS.
Nonetheless, White House Press Secretary Sarah Huckabee Sanders suggested from the White House podium that ESPN should fire Hill. Such a suggestion, when issued from the White House, has teeth. Indeed, it appears that after Sanders issued her comments, ESPN tried—unsuccessfully, thanks to the objections of her colleagues—to take Hill off the air. Friday morning, President Trump doubled down on White House criticism of ESPN, tweeting that ESPN’s “politics” were turning off viewers and demanding that the sports media company “[a]pologize for untruth!”
If the White House’s threats against Hill and ESPN were an isolated incident, they could perhaps be forgiven as a lapse in judgment. But they are far from isolated. Instead, they are part of a broader and more systematic attack by the President and others within his administration on the free press and free speech.
Since January, they have repeatedly labelled news outlets that President Trump deems unfavorable as “fake news,” and they have banned certain outlets from press briefings. The President has called the press “enemies,” “liars,” and “sick people.” He has singled out individual members of the press for verbal abuse. His administration has expressed a desire to jail journalists who publish classified information and to “open up” libel laws. He has criticized and threatened Amazon after unfavorable coverage in the Washington Post, with which it shares an owner. And a feud over coverage of the President on an MSNBC show hosted by Joe Scarborough and Mika Brzezinski rapidly escalated—resulting in allegations that the President’s son-in-law had threatened unflattering coverage of the anchors in National Enquirer unless Scarborough personally apologized to President Trump for his criticism.
We also have seen the President attack individual citizens for expressing their views. For example, in the realm of sports, he has suggested that NFL teams will not employ quarterback Colin Kaepernick—who has refused to stand for the national anthem—because they know that they will be attacked by the President of the United States if they sign him. And seemingly eons ago, the President tweeted biting criticism of Chuck Jones, president of the United Steelworkers Local 1999, because Jones (accurately) accused the President of overstating his role in saving the jobs of Carrier workers in Indiana.
These attacks on the press and free speech have taken different forms, but there is a common theme: an attempt to bully, punish, and silence critics, whether ordinary citizens or members of the media. This methodical attack on dissenters is a disturbing sign of democratic decline. A free press and the right to criticize government are hallmarks of a free and open democratic society, and attacks on these freedoms are a traditional tool of authoritarian leaders.
Yet unlike in other areas where President Trump has threatened to undermine our democracy and the Constitution, there has not been a concerted attempt by lawyers and legal organizations to push back on his attacks against the free press and free speech. This notable silence may be the result of a general perception that—as troubling and un-American as it is when the President or his associates threaten critics—there is no available legal remedy.
It may be that the best response to some of these attacks on the press and free speech lie outside the legal realm, and should be left to our civic society and politics. But we would suggest that, while there are questions to work through, there should be—and likely is—a justiciable claim when the White House seeks to force the firing of a critical reporter, or threatens to send IRS or DOJ investigators after a newspaper, to chill unfavorable coverage.
So in partnership with Take Care, we hope to start a conversation. Has the White House already violated the Constitution or other laws through its bullying of the press or private citizens? What can legal scholars and advocates do to combat it? Is the First Amendment as vulnerable as it might seem, or are there more useful legal tools at our disposal?