Media

Trump Administration’s Attack on Free Speech Sets a Dangerous Precedent

American democracy is at stake.

President Donald Trump at a "Thank You Tour" rally held at the Giant Center Hershey, Pennsylvania, December 15, 2016.
Photo Credit: Evan El-Amin/Shutterstock

On Sunday, 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 Monday'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.

 

Matthew Menendez serves as counsel for the Justice Program of the Brennan Center for Justice at NYU School of Law, where his work focuses on judicial administration and reforming the criminal justice process. Menendez has also worked extensively on preserving judicial impartiality and independence through litigation and policy analysis.

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