History Repeating Itself: The First Amendment in the Era of “Fake News” Commentary
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History Repeating Itself: The First Amendment in the Era of “Fake News”

Following a combative news conference with reporters the day after the 2018 midterm elections, President Trump took the exceptionally rare act of suspending the White House credentials of long-time CNN Chief White House correspondent, Jim Acosta. The announcement came the day after Acosta confronted President Trump with a series of questions about the President’s portrayal of a Central American migrant caravan as an “invasion.”

The President responded defensively to Acosta’s questioning, quipping, “Honestly, I think you should let me run the country — you run CNN.” After a White House intern tried unsuccessfully to retrieve the microphone from Acosta’s hand, President Trump said that Mr. Acosta was “a rude, terrible person.” Later that evening, when Acosta tried to re-enter the White House, a member of the Secret Service asked him to relinquish his “hard pass,” which grants journalists entry to the compound.

This incident is the latest in a litany of attacks President Trump has waged on what he has dubbed the “fake news” media. Indeed, while the 280-character limitation of Twitter makes a nuanced communication of executive policy almost impossible, it has been an effective medium for President Trump to denigrate the press and dismiss criticism as fake news. Even more disturbing than his verbal vilification of journalists who question his policies is the President’s wielding of power to silence his critics. President Trump has launched threats – and in some instances has acted – to quiet his critics. He has threatened to revoke broadcast licenses from networks that have launched criticism of him and has interfered with press access on several occasions, including banning reporters from rallies, news conferences, and other official events.

President Trump is not the first president to harbor resentment toward the media. Presidents Woodrow Wilson, Harry Truman, and Richard Nixon all had strained relationships with the media. In a 1955 letter, President Truman wrote that “Presidents and the members of their Cabinets and their staff members have been slandered and misrepresented since George Washington . . . when the press is friendly to an administration the opposition has been lied about and treated to the excrescence [sic] of paid prostitutes of the mind.” President Nixon’s short term in office was plagued by an especially tumultuous relationship with the media. Moved by his own paranoia and the embarrassing revelations about his role in the Watergate scandal, Nixon assembled a list of press “enemies” and had them audited. He went so far as to ban a reporter from the White House after the reporter wrote a story critical of Nixon in the Los Angeles Times raising concerns about the cost for taxpayers of Nixon’s decision to maintain two personal properties.

While these previous presidential eras were marked by a general cynicism of the press, President Trump’s condemnation of any reporting he characterizes as fake news has amplified the public’s distrust of the media to a dangerous level.

Indeed, the President’s anti-press rhetoric and his attempt to control public debate by silencing those who disagree with him pose serious First Amendment concerns. In attempting to manipulate what he has dubbed the “fake news” media and to silence citizen-critics by blocking them from the public comment space on his social media pages, he is undermining the central meaning of the First Amendment and shackling political speech.

Over a half century ago, the United States Supreme Court in New York Times v. Sullivan clarified the vital role of the First Amendment Free Speech Clause in preserving the “marketplace of ideas.” The Sullivan case represented a seismic shift in the nation’s First Amendment free speech jurisprudence. In considering a public official’s libel claim against the New York Times, the Court restricted the extent to which the government may limit the press in its ability to criticize the government. Describing the central meaning of the First Amendment Free Speech Clause as a commitment to the principle of “uninhibited, robust, and wide-open” debate, the Court underscored that “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” are not immune from First Amendment constitutional protections.

By enshrining the central values of the First Amendment, the Sullivan Court solidified the goals of promoting self-governance, eliminating deterrents to uninhibited public discourse, and thwarting tyranny. That is why it is axiomatic that the government cannot silence speakers based solely on a disagreement with the speaker’s viewpoint.

But, in the Trump era, criticism of the President has been labeled unpatriotic. Not unlike the English seditious libel laws, which our forefathers eschewed, the truth of the assertion is immaterial. In fact, historically, the truer a criticism of the King was, the harsher the penalty. Although President Trump does not have the power to impose criminal sanctions on those who criticize him, his vitriolic response to criticism can affect the economic welfare of his critics and the country’s overall well-being.

A 2018 national survey conducted by Rasmussen Reports indicates that 51% of U.S. voters think the president is more to blame for his tumultuous relationship with most traditional media outlets, while 42% feel it is the media’s fault. During a particularly fragile moment in history when the country is profoundly divided, the President’s anti-press rhetoric has further polarized opposition viewpoints and created a deeper schism among those who support the President and those who oppose him. Instead of trying to harmonize these diverging groups, the President, occupying a world stage, has characterized the media as “the enemy of the people,” breeding skepticism and perpetuating fear in the minds of Americans who look to the President for cues about whom to trust. In discrediting the mainstream media, President Trump has stifled political discourse and weakened the traditional role of the press as a check on government abuses.

Whether it’s his bashing of the “fake news” media or his decision to block journalists that question his policies, President Trump’s caustic rhetoric and attack on the press are an onslaught of the very First Amendment principles that form the basis of our democracy. Ultimately, the American people are resilient and can reclaim the freedom of the press as a check on government. The judiciary may also play an important role in preserving the marketplace of ideas that was central to the Sullivan Court’s safeguarding of the First Amendment. Without those checks, should President Trump continue to bash the media and censor reporters that challenge him, his time in office will become akin to that of a 17th century monarch.

Danielle Weatherby is an Associate Professor of Law at the University of Arkansas School of Law where she teaches Education Law, Employment Discrimination, and Legal Research & Writing. She received her JD from the University of Florida Levin College of Law. Her scholarship focuses on the intersection between religious exercise and public accommodation laws and the First Amendment. She also co-directs the University of Arkansas School of Law’s student competitions program and serves as Co-Coach of the ABA National Appellate Advocacy Competition teams.


Suggested citation: Danielle Weatherby, History Repeating Itself: The First Amendment in the Era of “Fake News”, JURIST – Academic Commentary, November 13, 2018, http://jurist.org/forum/2018/11/weatherby-history-repeating-first-amendment-fake-news.php

This article was prepared for publication by Nicholas Chan, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org

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