Threats to the Media in the Second Trump Term
In late July I penned a column on the threats to the media in a possible Trump administration. Now since that’s a certainty, not just a possibility, it seems appropriate to republish it. It’s not necessarily better than any of the similar pieces written in the past few days, but it does highlight both how little and how much things have changed in the intervening four months.
While we can also draw on his first term as a guide, the sad truth is that this second administration is likely to be far worse and far more hostile to the press and to First Amendment values: He’s learned from his first four years; he will only have yes-men surrounding him, no experts and no buffers; it looks like he has the rest of government behind him, most probably both Houses of Congress and very sadly, but judging from the incredible immunity decision, the Supreme Court; he has no possible next term to strategize for, hence no moderation in his actions; and by winning the popular vote pretty handily, he will claim a mandate with the majority of the country behind him.
While we can also draw on his first term as a guide, the sad truth is that this second administration is likely to be far worse and far more hostile to the press and to First Amendment values: He’s learned from his first four years; he will only have yes-men surrounding him, no experts and no buffers.
My August column focused on just a few areas where I thought Trump would attack us the fiercest. Even in those areas, things have only gotten worse. But there are other issues which I didn’t highlight back then which certainly deserve a mention now.
My first point dealt with his desire to overturn Times v. Sullivan and the Supreme Court. On the one hand, I don’t see it likely that any of the justices will resign in the near term, at the earliest perhaps in the last year of his term. The notion that I’ve read this week, that Justice Sotomayor will step down immediately to allow for Pres. Biden to appoint a liberal justice in her place before his term runs out seems fanciful. To rely on a confirmation process lasting less than two months in this Senate would be most ill-advised. I don’t see Thomas or Alito stepping down either – unless one of them, perish the thought, is named Attorney General. (After the inevitable withdrawal or rejection of Matt Gaetz.)
As to actual malice, it’s easy to see Trump filing more defamation cases. In fact, he already has two amazingly weak case pending. One is against the Pulitzer organization for not rescinding a Pulitzer Prize to the Times and the Post for their coverage of Russian interference in the 2016 election. The other is against ABC’S George Stephanopoulos for saying a civil jury found Trump liable for raping writer E. Jean Carroll (which is exactly what Judge Lewis Kaplan said the jury found). If those cases are thrown out on actual malice grounds, it would give him another reason to get irate about that defense.
My column also bemoaned the likely weakening of the new DOJ Guidelines re journalists which AG Garland amended, and the likelihood of more subpoenas on reporters aimed at unearthing their confidential sources. Indeed, not only does it seem likely a new AG will weaken the Guidelines, it’s possible they will be rescinded altogether. And since the PRESS Act, which seemed oh-so-near to passage after the House passed it, has made no progress in the Senate, as its session ends, it seems to be a dead letter. As to subpoenas, all you need to know is that Trump was quoted as saying that rape in prison would quite possibly cause reporters to reveal their sources.
As to subpoenas, all you need to know is that Trump was quoted as saying that rape in prison would quite possibly cause reporters to reveal their sources.
While I focused on a plethora of possible new Espionage Act prosecutions, a la Assange, against journalists for divulging national security information, the more recent articles go far broader, and suggest Trump may use the Act to punish reporting on state secrets, broadly defined, and classified information, maybe even including White House deliberations.
Finally, I suggested that a second Trump administration might well outdo the first in terms of trying to squelch the speech of all sorts of adversaries, high up on the list being journalists, particularly when covering protests and demonstrations antithetical to Trump programs, as are sure to take place regarding mass deportations and the Gaza situation just to name two. After all, in connection with Black Lives Matter, George Floyd demonstrations and the like, some 150 journalists were arrested during Trump’s first term. Other journalists were surveilled by law enforcement, and such illegal surveillance clearly is a threat by a President who seems to have no respect for the law.
Trump may use the Espionage Act to punish reporting on state secrets, broadly defined, and classified information, maybe even including White House deliberations.
Other attacks on the press were left unwritten in the column, but are worthy of mention now. Within hours of the polls closing, Trump kicked out some reporters he deemed unfriendly to him from his very first presser on election night. Not only did this bring back memories of the Jim Acosta imbroglio during his first term, when that CNN reporter was denied access to a White House press conference open to the press. One could almost see his denying access to all of his “enemy” media, allowing only right-wing media to cover him. It seems vital for the press to stand together and not let him divide and conquer.
We don’t know what Trump’s position is on Sec. 230 and content moderation other than that he’s against social media platforms which he perceives don’t favor him. It seems possible that if the Elon Musk-Trump bromance continues – which itself seems dubious as between two narcissists – they will have to decide whether to favor regulation which favors social media platforms generally or those just owned by Musk.
One could almost see his denying access to all of his “enemy” media, allowing only right-wing media to cover him. It seems vital for the press to stand together and not let him divide and conquer.
Other Washington maneuvers against media companies might be forthcoming as well. You’ll recall his efforts to stop the media merger involving AT&T and Time Warner during his first term; similar antitrust or other attacks might occur – and one could argue that Jeff Bezos’ last minute no-endorsement policy for the Washington Post was a step trying to protect himself from just such action.
And on the campaign trail, he often threatened that television networks which were not fair and neutral – meaning favorable to him – might be subject to denial of their broadcast license renewals. He made that threat directly against ABC, whose (much needed) fact-checking during the first (and only) debate he did not approve of. And just last month, he said that CBS should lose its broadcast license for its 60 Minutes interview with Kamala Harris – and followed up with a bizarre and baseless $10 billion consumer fraud lawsuit against CBS. Of course, the licenses are not given to networks, only individual local stations, but the aura of attacking media because of their content looms large.
It seems possible that if the Elon Musk-Trump bromance continues – which itself seems dubious as between two narcissists – they will have to decide whether to favor regulation which favors social media platforms generally or those just owned by Musk.
In sum, this is a President-elect who just a few weeks ago implied that he wouldn’t mind if journalists got shot. He is a President-elect who lies incessantly and has no interest or respect for truth or the law. And one who often terms the media “the enemy” and repeats, without any backing whatsoever, that they deliver “fake news.” Worse, he explained to Lesley Stahl that he does that just so that when the media reports unfavorable news about him, the public won’t believe it. And by the electorate voting for a convicted felon, sexual assaulter, fraudster and liar, it turned out that he was right. The public either didn’t believe it or, perhaps worse, didn’t care.
But critically for the media, another result of the election was that it seems as though the mainstream media is backing into irrelevancy. There will be no Trump bump this time: the huge circulation increases the Times and the Post saw after the 2016 election are not occurring. To the contrary, in the first week after the election, the so-called liberal cable tv networks lost between 30-50% of their viewership and the Washington Post apparently lost 200,000 readers due to opposition to Bezos’ non-endorsement position and seems unlikely to get them back. While in 2016 readers of all stripes flocked to mainstream media either to support the loyal opposition or simply to keep track of all the novel developments of an unusual president, this time the public seems to have a “been there, done that” attitude or is simply bored and tired of Trump’s shenanigans.
But critically for the media, another result of the election was that it seems as though the mainstream media is backing into irrelevancy. There will be no Trump bump this time … Joe Rogan seems to be replacing Walter Cronkite, which, at least imho, is not a good thing. What it all means is that a majority sector of the country is not reachable by the mainstream media, is not listening to anyone whose primary interest is in delivering true facts.
Maybe worse for MSM, the public, particularly the younger generation, is turning to podcasts and social media for their news. Joe Rogan seems to be replacing Walter Cronkite, which, at least imho, is not a good thing. What it all means is that a majority sector of the country is not reachable by the mainstream media, is not listening to anyone whose primary interest is in delivering true facts. Since the right certainly, and the left to an increasing degree, doesn’t trust the media, it’s hard to say how this sorry condition will change.
From a legal point-of-view, what can we do? As I said at our Annual Dinner, all we can do is use our training and professional experience to preserve, protect and defend the First Amendment and the principles of free speech and a free and independent press.
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Beware the Attacks on the First Amendment by a Trump Presidency
Originally published in August 2024.
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 3rd 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.