Beware the Attacks on the First Amendment by a Trump Presidency

These are volatile and polarized times for our country. Not since 1968, if then – and that was half a century ago – have we seen as much conflict in the land. Moreover, the changes and political exploitation of the media landscape since then – primarily cable and social media – has made the environment even more conflict-ridden. Yet despite the citizenry’s divisions and their retreating to their separate silos, unprecedentedly not even agreeing on the underlying basic facts, the MLRC remains politically neutral. Our mission is set forth in our By-Laws:

…promoting freedom of speech and freedom of the press as set forth in the First Amendment of the United States Constitution and in the constitutions of the several states, specifically by improving the law in the areas of libel, invasion of privacy and other relevant law and practice areas, and thereby sharing the common interests of individuals and business entities that publish, broadcast or otherwise disseminate news, information or other data to the public…

No politics there, just a declaration that our mission is to further free expression, be committed, in familiar words, to uninhibited, robust and wide-open debate on public issues and , conversely, to oppose attempts to squelch or punish speech. We have a narrow, but very significant, interest. Now, usually, our presidential candidates tend to be roughly in the same place on First Amendment issues; there may be some slight differences or one candidate might favor an initiative either for or against particular issues on the media law spectrum, but typically no great contrasts – and even where they campaign on somewhat distinguishable First Amendment platforms, they tend to behave pretty similarly once in the White House.

But this year is very different. The statements, actions and positions of Donald Trump pose a clear threat to the core principles we stand for. Even so, the MLRC’s intent is not to enter the political fray; it is to oppose his policies and the likelihood he will be in a position to effect them.

Sadly, there are a plethora of examples, both from his statements and his actions as President from 2017-21, which justify real fear as to the steps he might take regarding a free press and free speech, if he is elected. I will deal first with some of the issues in the traditional media law realm, and then with some broader threats to speech by his opponents, protests by demonstrators, and even the electoral process itself.

We all know his position on libel law: Sullivan should be overturned; plaintiffs should not have to prove actual malice when false statements have been made about them. We also know the irony of this position. Given his propensity for making false and disparaging outbursts, he often is and will be a libel defendant, and will personally have to rely on the very defenses he is campaigning against. He has had some libel suits against him dismissed, such as the one by a spurned job-seeker whom he said “went hostile” and was “a real dummy”and “major loser, zero credibility”  on grounds that it was protected opinion. But he lost close to $90 million in two defamation cases brought by Jean Carroll who claimed he libeled her by denying he had sexually assaulted her despite a jury’s ultimately finding otherwise.

But more relevant to the current discussion are the two cases where Trump currently is a libel plaintiff and in which he very recently successfully rebuffed motions to dismiss by the defendants, in one case ABC and George Stephanopoulos, and the other the Pulitzer Prize awards board. In the ABC case, the Florida federal judge denied defense motions to dismiss on substantial truth and fair report grounds for saying Trump had raped Carroll where the jury had found him guilty of sexual assault, notwithstanding the federal judge in that case wrote that to the public there was no real difference between the two. In the Pulitzer Board case, Trump claimed libel because the Board reaffirmed their awards to the NY Times and Washington Post for their coverage of the Trump campaign’s links to Russia in the 2016 election despite the Mueller Report, which he argued undermined that view.

The problem is that it seems to me quite likely that in the next round, both those cases will be dismissed on actual malice grounds. If that happens while Trump is President, since his main interest never fails to be himself, that might bring about a louder and more serious campaign to overturn Sullivan than did the minority opinions of Justices Thomas and Gorsuch. While the MLRC’s 200 page volume on the need to protect Times v. Sullivan was terrific and surely served its purpose, we will need to revitalize it if a President Trump starts screaming and posting about how the law was unfair to him in these cases.

Of course, Trump’s wish to overturn Sullivan and weaken other First Amendment protections inexorably leads to the concern of whom he might appoint if other SCOTUS seats become open. Would a Court with an even greater right-wing tilt issue the somewhat supportive decision it outlined on platform First Amendment rights in the recent NetChoice cases. While it must be said that this has been a pretty strong First Amendment court, we should remember that its jurisprudence has come in non-media cases, and that new Trump appointments, particularly if one should replace one of the liberal minority, could really be ultra-troubling.

Another very serious problem during an upcoming Trump Administration will be his likely attacks on the press and its sources when information or views of whistleblowers or critics are reported. He has already spewed as to how he intends to weaponize the Justice Department for such ends. Of course, the DOJ recently strengthened the protection of journalists when it made changes to the DOJ Guidelines regarding the reporters’ privilege. The amendments essentially barred the use of subpoenas on journalists other than in quite exceptional cases. It seems fairly clear that a Trump Presidency will not follow the current Guidelines, but will, early on, either eliminate, weaken or simply ignore them, so that it can persecute and prosecute both critical sources and reporters.

The above situation underscores the urgent need to pass the PRESS Act in the current session of Congress. As Sen. Ron Wyden (D-OR) told us at our Virginia Conference last year, the PRESS Act has bipartisan backing in both the House and the Senate. It was easily passed in the House in two terms and seems to have adequate support in the Senate. But whether because of the general disfunction of the Congress, or because greater priority is being given to other measures, or because the Senate’s antiquated rules seem to allow one Senator to keep such a bill from getting to the floor, no progress has been made for months in the Senate. Since a Trump DOJ under an Attorney General of his choosing is likely to eviscerate the Guidelines, it is imperative that we do all we can to get Congress to enact the PRESS Act (and President Biden to sign it) in the waning months of the term.

A third highly problematic area will be an increased use of the Espionage Act to prosecute government leakers and perhaps journalists as well. It was the first Trump Administration which amended the Assange indictment with superseding charges related not only to Assange’s working with Chelsea Manning to leak secret government documents to the media, but to then charge Assange for possessing and publishing them. To go after a publisher for publishing sensitive documents which it obtained legally was essentially unprecedented and was broadly read as a threat against the mainstream media for work it routinely does. The recent Assange settlement avoids a court decision on the issue, and hence a legal precedent a future DOJ can rely on. However, whether Trump will see it that way is unlikely, as is the rosy notion that the plea deal focuses on the documents he helped get from Government files with Chelsea Manning as opposed to those he received legally as journalists typically do. He may well take the Assange conclusion as an invitation to prosecute – and chill – journalists reporting on leaked national security information in the future.

At the beginning of the first Trump Administration, the MLRC worked on a model brief to support reporters who might be excluded from the White House or attendance at press conferences because Trump didn’t like their coverage. Just a few months later, Trump barred CNN reporter Jim Acosta from access to the White House, and our brief came in very handy. By the same token, it may not be a bad idea for our committees to build on our past work on the Espionage Act and update our memo to argue to the courts that a prosecution of a reporter for writing about national security information she obtained legally would be unconstitutional.

But while these discrete media law issues are very significant, even more troubling are the steps Trump may well take to stifle and squash speech generally. In that regard, it would be hard not to start by repeating the broadsides Trump as President made against the press, from repeatedly calling them the enemy of the people to his vile attacks on particular journalists, often those of color or women, or his moronic intonation of the mantra of fake news to try to deflect the various factual criticisms made against him.

Amazingly, just last week, he said something worse than all that, a shot over the bow attacking the very essence of our democracy, and the most basic vehicle by which we register our views – the vote. In a speech to a Christian group, he beseeched them to vote in the upcoming election, saying that if they do and he were then elected, in four years “you won’t have to vote any more.” Democrats and others called those remarks “terrifying,” suggesting that they raised the specter of authoritarianism and the inference that he would somehow eliminate elections in 2028. While Trump first doubled down on his remarks, he later tried to explain that what he supposedly meant was that Christians, who historically vote in lesser numbers than average, wouldn’t have to vote in ’28 because by then he will have fixed the country so well that the GOP would win in a landslide in four years notwithstanding their staying home.

Not quite as scary, but still frightening was the news reported recently that a Trump team had already set up a committee to work on ensuring an electoral victory in ’28 by nefarious means. Limiting the number of polling places in Democratic wards, barring water from long lines which are the result, even stationing federal law enforcement agents at polling places ostensibly to prevent voter fraud but really to intimidate likely Democratic voters, are all steps which have been contemplated. It’s also been reported that the Trump team has learned from its foolhardy attempts at fighting the results of the ’20 election, and will use more sophisticated, but still somewhat illegitimate, means to overturn the results of the election this November, if necessary. These strategies go beyond the bandwidth of the MLRC, but as they are aimed at overthrowing the voice of the people, they ought to be most concerning to all of us.

But more central to the interests of the MLRC and its members are the very likely attempts of a new Trump Administration to use the DOJ against his opponents and to disrupt and squelch the voices of protestors and demonstrators. At the outset, I would stress that a second Trump term is almost sure to be worse than the first. As will be recalled, at the start of his Presidency, Trump put in important positions a number of experts with experience in their fields. However, because they weren’t loyal enough or disagreed with their boss on policy, most either resigned or were let go. There even were reports, some by those involved, that some of these aides would take or hide bills of pending legislation from his desk, so that he wouldn’t have the chance to take action on them. It is inevitable that this time around Trump will not appoint such aides, but will surround himself only with yes-men, there to do his bidding. Thus, there will be no buffers to his proclivity to exceed the usual norms which have governed us for centuries.

One such norm is using the Justice Department for his own ends. It’s, of course, true that presidents have traditionally named friends and allies to be their Attorney Generals, Bobby Kennedy being one such example. But the DOJ has traditionally been independent, and, further, has not been used to investigate or punish a president’s critics or enemies. Yet unfortunately that is what we must look forward to in the next four years if Trump is elected. Based on his own words, he plans to use the DOJ to indict political opponents, and to replace civil servants and other traditionally apolitical appointees with those ready and even pledged to do his bidding. So instead of a DOJ dedicated to ensuring civil rights around the country, a Trump DOJ might well emphasize abusive cases against not only journalists, but also protestors, perceived antagonistic voters, abortion enablers and others he sees as his enemies. Indeed, in a move that would move us from leader of the free world to little different than a 3^rd world nation, he has already threatened prosecution or violence against President Biden and his administration’s officials – not to mention his own Vice President, Mike Pence. And even in our bailiwick, he threatened to oppose a merger involving a media company because that media entity “was anti-Trump.” 

In addition to generally seeking revenge on its perceived enemies, a second Trump Administration would also likely take harsher steps than it did last time to quell protests and demonstrations opposing its policies. In opposition to the Black Lives Matter demonstrations in 2020, Trump instructed state officials to call out the National Guard – as an aside, I once served in the National Guard, 1971-77, and hardly would have been a very effective trooper in that situation – to disrupt the peaceful protests which were taking place. He deployed federal law enforcement agents in Portland, Oregon to stifle protests there, and they unlawfully arrested journalists and legal observers. He has threatened to do the same or worse if he is re-elected. (And yet, just last Wednesday, he affirmed during his appearance at the National Association of Black Journalists conference that he would pardon convicted January 6 rioters who attacked police; apparently, violence at protests is fine so long as it’s supporting him.)

The Constitution clearly protects peaceful protests, and in many of the above cases it was clear that the protesters had gathered and demonstrated legally. Therefore, the actions by the authorities to disband them were and will be presumptively unconstitutional. Similarly, Trump has praised law enforcement actions against demonstrating students on campus. Merging these views with his position on immigration, he has often threatened to throw any protesting students, not US citizens, out of the country, bragging that this would end the protests. The notion that such peaceful assembly is a core First Amendment right appears to escape him.

We can also look forward to campaigns aimed at controlling speech on-line. Trump himself sued social media companies over their responses to his repeated violations of their terms of service (and lost every time); he certainly can be expected to support laws punishing content moderation, like those passed in Florida and Texas, as well as ongoing Congressional harassment of platforms and misinformation researchers perceived (with little or no actual support) as discriminating against conservatives. It’s anyone’s guess what he thinks of Section 230 since the launch of his mouthpiece Truth Social, but during his first term he tried (and failed) to undermine 230 by executive order.  This would put more of a focus on the courts, and how they handle the cases which will come before them. One would hope they would continue their seeming trend of recognition of the First Amendment rights of the platforms, but we would have to be vigilant that the courts don’t change their tune because Trump would be in office as opposed to being on the outside, as he has been for the last four years.

So, there is much to be worried about in our area in the next four years were Trump to be elected. It’s impossible to predict which of all these issues will move to centerstage, though, sadly, the odds are many of them will. What’s also unclear is what we can or should do about all this, especially three months before the election. But if anyone has any ideas or would like to start a group to work on some action steps, please let me know. The MLRC stands ready to help in whatever way it can.

George Freeman is MLRC executive director. All opinions are those of the author and not the organizations. Comments are welcome at gfreeman@medialaw.org.