A Major Unconstitutional Assault: A Bias Monitor Installed by the White House at a News Division
A recent article in the daily Poynter Report was headlined “Trump’s latest moves against free speech are ‘really scary stuff’”, and focused on his firing the Commissioner of the Bureau of Labor Statistics for reporting totally legitimate economic numbers he didn’t like. It also cited the closing of the Corporation of Public Broadcasting because he revoked the $1 billion which had been earmarked for it. The article concluded: “On top of all this, there’s the dismantling of Voice of America, lawsuits against television networks, threats to take away TV licenses, banning certain news outlets from press conferences, suing the Wall Stret Journal , and the constant attacks on media outlets.”
But what is stunning to me is that this list of Presidential assaults on the press, and ultimately on our democracy, didn’t even include what I consider the most nefarious move of all, a development which more directly violates the Constitution than any of the others. That is the appointment of a “bias monitor” to evaluate and report on substantive content of CBS News to the President. As with everything regarding a Trumpian deal, it is unclear and vague whether that President is Trump or the President of Paramount, but either way, having a governmentally imposed agent overseeing and reporting on the content of a news outlet seems more offensive to the principles of free speech and an independent press than any of the other outlandish offenses.
But what is stunning to me is that this list of Presidential assaults on the press, and ultimately on our democracy, didn’t even include what I consider the most nefarious move of all, a development which more directly violates the Constitution than any of the others. That is the appointment of a “bias monitor.”
Perhaps equally frightening is that amidst Trump’s distraction offensive, this outrage has gone under the radar, and remains largely unnoticed. It has received remarkably little play in the media itself, which ought to be loudly publicizing it, and hence has not been a subject of much public opinion, let alone consternation. Indeed, one reason for this column is to make media lawyers aware of this dangerous step.
As Terry Moran wrote:”The Trump FCC demanded an in-house stooge at the news division to alert the corporate bosses when the journalists get out of line and exhibit “bias”. How is “bias” defined? You already know that. In Trump-speak, “bias” is whenever Donald Trump doesn’t like a story.”
Whatever one’s views of Trump’s politics, I think we can all agree that the federal government has no business overseeing or monitoring the editorial content of news coverage. We do not and cannot have a state-controlled news media. That is the very basic principle the MLRC and First Amendment lawyers hold dear. Yet this step sems very much like a first step to a TASS or Pravda, and to what Victor Orban has done in Hungary.
“How is ‘bias’ defined? You already know that. In Trump-speak, ‘bias’ is whenever Donald Trump doesn’t like a story.”
The goal is more than just influence; it is de facto government control of media coverage. Trump essentially tweeted that very concept: “This is another in a long line of VICTORIES over the Fake News Media, who (sic) we are holding to account for their widespread fraud and deceit. The Wall Street Journal, The Failing New York Times, The Washington Post, MSDNC, CNN and all other Mainstream Media Liars are ON NOTICE that the days of them (sic) being allowed to deceive the American People are OVER.” Or as FCC Chair Brendan Carr said ominously, “Once President Trump has exposed these media gatekeepers and smashed this façade, there’s a lot of consequences.” Waiting for the next shoe to drop, William Paley, Edward R. Murrow, Fred Friendly and Walter Cronkite must be spinning in their graves.
Trump’s FCC appointee has made the President’ goals even clearer. After making false and outrageous presumptions about CBS by praising its “new buyers” for their commitment to “unbiased, fact-based reporting”, Carr alluded to Trump’s influence, if not control, over the content of the networks’ news programming: “ One of the things that President Trump did was he ran directly at the legacy national media, and he smashed the façade that they get to decide what we think and what we get to say.” All that was left out was his spouting that the government should tell us what we think and what we are allowed to say.
The President somehow thinks, perhaps spurred by the capitulation of the networks and others in a number of cases, that he actually can control what goes on the air. We have seen since the beginning of the Administration his threats not to renew the networks’ FCC licenses, not withstanding the Constitution probits him from doing that on the basis of content, and more technically, that the networks don’t have licenses- the individual stations do. And just a few weeks ago, after a farcical debate as to whether it was Obama or Trump who tried to engineer a coup of our Government, Joy Behar on “The View” offered her view that Trump was jealous of Obama, who, she said, led a better and fuller life than him. In response, the White House issued a pointed statement saying that The View could be “pulled off the air.” And, of course, he gloated about the Colbert cancellation. Why the President thinks he has the power or the right to decide what programming goes on the air – any more than he has to determine that the Washington football team should be renamed the Redskins -is unclear.
The primary lesson is that conciliation and appeasement are plainly not working. To Trump, victory over, or capitulation of, one media entity is a signal that all the others are ready to concede as well.
Beyond trying to warn us all that this threat is real, and not hypothetical, as outlandish and unprecedented as it appears to be, what can we learn from all that’s gone down so far. In my view, the primary lesson is that conciliation and appeasement are plainly not working. Trump is a bully, and the more one concedes, the more one gets hit again. This is especially true for the industry as a whole. To him, victory over, or capitulation of, one media entity is a signal that all the others are ready to concede as well.
I am reluctant to cite my former employer as an example, but The New York Times has not given an inch, and has won all the litigations Trump has brought against it and has not settled any of the cases. As a result, while Trump still makes threats, they seem empty; indeed, over a month ago when the Times followed CNN in publishing articles (based on preliminary government documents) running counter to Trump’s assertion that the US air strikes against Iran had “obliterated” its nuclear program, Trump immediately threated suit, but so far nothing has been forthcoming. I would bet no lawsuit will be filed against The Times.
The spectre of a state controlled, or even influenced, media is a horrific one. It goes against the very heart of the First Amendment. Who knows if a government assigned “bias monitor” at our historically most revered news division is the first or last step.
On the other hand, as a recent Poynter Report warned, “Trump looks like he’s just getting warmed up. Now that he has gotten Paramount to settle its lawsuit with him, Trump is taking aim at the other two major networks, NBC and ABC.” As Trump posted, “They are an arm of the Democrat (sic) Party, and should be held accountable for that.” He concluded, “It has become so outrageous that, in my opinion, their licenses could, and should, be revoked.”
The spectre of a state controlled, or even influenced, media is a horrific one. It goes against the very heart of the First Amendment and is contrary to every tenet in our bones. Who knows if a government assigned “bias monitor” at our historically most revered news division is the first or last step. But we all should be warned that this President is hungry to be like Hungary. And we should be prepared to do whatever we must to not allow that to happen.