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Analysis

Trump Administration’s Attack On Free Speech Sets A Dangerous Precedent

Apparently not satisfied with using the President’s Twitter feed to attack the media, the White House is continuing the most sustained attack on the media by an administration in decades.

May 2, 2017

Cross-posted at Huff­Post

Yester­day, in an inter­view with ABC’s Jonathan Karl, Reince Priebus, Pres­id­ent Trump’s Chief of Staff, said that the admin­is­tra­tion is consid­er­ing push­ing to change the First Amend­ment to make it easier for the White House to sue media organ­iz­a­tions, and that the media needs “to be more respons­ible with how they report the news.” Appar­ently not satis­fied with using the Pres­id­ent’s Twit­ter feed to attack the media, the White House is continu­ing the most sustained attack on the media by an admin­is­tra­tion in decades. The issue isn’t libel – it’s whether we can criti­cize our govern­ment and import­ant polit­ical lead­ers without fear of crush­ing legal liab­il­ity. The issue, in other words, is Amer­ican demo­cracy.

Priebus’ profoundly troub­ling state­ment runs against core Amer­ican values of free speech and press free­dom. During his Pres­id­en­tial campaign, Donald Trump famously prom­ised that, if elec­ted he would look into “open­ing up” libel laws. Priebus’ state­ment quickly drew bipar­tisan rebuke, as Repub­lican and Demo­cratic lawmakers alike spoke out about the need to protect free­dom of the press. And like many remarks from this White House, the state­ment seemed off the cuff. Priebus did not neces­sar­ily seem to know what he was suggest­ing (though as a lawyer, presum­ably he’s famil­iar with the First Amend­ment). However, in today’s press brief­ing, White House spokes­per­son Sean Spicer reit­er­ated that a change to libel law “is being looked into.”

One of these funda­mental prin­ciples is that, under the First Amend­ment, media outlets and the public are free to criti­cize elec­ted offi­cials. The U.S. Supreme Court artic­u­lated this protec­tion in the land­mark case “New York Times v. Sulli­van,” hold­ing that media organ­iz­a­tions cannot be convicted of defam­a­tion and libel without a show­ing of “actual malice.” That is, unless a media organ­iz­a­tion know­ingly publishes false inform­a­tion, or oper­ates with reck­less disreg­ard for truth, the First Amend­ment protects the speech. This case created the space for wide open and fear­less polit­ical debate in the United States.

The remarks by the pres­id­ent, his spokes­per­son, his chief of staff betray ignor­ance of our guar­an­tee of free­dom of speech and free­dom of the press. There are no federal libel laws to “open up,” and the Supreme Court has made clear that the First Amend­ment offers robust protec­tion to news organ­iz­a­tions. There are very import­ant reas­ons we allow for a free press that can criti­cize our lead­ers. A free press is a crucial bulwark against author­it­ari­an­ism, and is neces­sary for informed public debate. And if it were easier to win libel claims against media organ­iz­a­tions, we would likely see small and inde­pend­ent media outlets struggle, as only the large corpor­a­tions would be able to afford the risk of public­a­tion.

And the First Amend­ment protects indi­vidual speech as well. Without the prin­ciple estab­lished in “New York Times v. Sulli­van,” Donald Trump could have been sued by then-Pres­id­ent Obama for Trump’s tweets ques­tion­ing the Pres­id­ent’s citizen­ship. In our soci­ety, each indi­vidu­al’s right to tweet, blog, or stand on a soap­box and criti­cize the govern­ment is integ­ral to our demo­cracy. And the First Amend­ment also protects the Pres­id­ent’s right to tweet, and the right of conser­vat­ive provocateurs such as Breit­bart and the Drudge Report to publish without fear of govern­ment retali­ation. The admin­is­tra­tion should be care­ful what they wish for.