It's now clear that President Trump poses unprecedented threats to freedoms of speech and press. Take Care and Protect Democracy have teamed up to host a forum in which leading scholars consider how we can use the law (and litigation) to protect against Trump's use of the "bully podium." This is the latest entry in that forum.
President Trump’s attacks on the free press are unprecedented in both acrimony and frequency, and have widely been condemned by commentators across the political spectrum. Why, then, have his judicial nominees not been subjected to more scrutiny on their views of his statements, particularly when our standing in the 2017 World Press Freedom Index has fallen to a tepid forty-third?
Just last Wednesday morning, for example, President Trump tweeted: "With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!" He followed up this astonishing comment by stating, during an open meeting with Canadian Prime Minister Justin Trudeau, that "it is frankly disgusting the press is able to write whatever it wants to write." And on Wednesday evening, the President repeated this refrain on Twitter: "Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!"
His words are an obvious affront to the First Amendment, which for centuries has guaranteed both freedom of speech and of the press. The guarantee is present both in the explicit text of the amendment and in its interpretation in one Supreme Court case after another.
One could dismiss these remarks as simply outrageous comments intended to inflame his base. But experts on authoritarian regimes, informed by experience, warn that leaders such as President Trump are best taken at their word. Moreover, evidence shows that President’s attacks are working: a POLITICO/Morning Consult poll found that 46% of Americans believe that the media makes up stories about him.
How, then, should we think about the President's recent assault on the press? One perspective is that his comment is an erosion of norms viewed as inviolable just a short time ago. Imagine, for instance, if President Obama had suggested that Fox News should lose its license as a consequence for its misleading coverage about his place of birth. Such a suggestion would have been met -- quite rightly -- with outrage. It would have captured headlines for weeks if not months. Today, many in the media and the general public are outraged about the President's comments, but the response is weary. "He doesn't mean it," some say. Or others, while speaking out today, are unlikely to pursue the matter beyond the next once-outrageous comment that requires response. A lot of us are growing desensitized to attacks on our Constitution. This is both a tragedy and an inevitable consequence when such attacks happen casually and routinely.
But, as troubling as shifting norms may be, will anything happen beyond that? Won't the law protect us against any real action to restrict the operation of news organizations? One answer is that, yes, the law should protect us. The Federal Communications Commission (FCC) issues licenses to network affiliates -- not to NBC or to networks in their entirety, as the President appears to believe -- and if the administration were to order the FCC to rescind a license without cause, the FCC should refuse to comply. Indeed, FCC Commissioner Jessica Rosenworcel tweeted today that the President's vision of rescinding licenses is "not how this works." And if, for some reason, the FCC did not reject an unconstitutional directive from the Trump administration, the injured affiliate should file suit, and the courts should immediately rule in its favor. This should not be a remotely close case.
Notice, however, that this outcome -- an FCC refusal, or, failing that, a judicial intervention -- depends on the existence of a robust and independent judiciary. An FCC commissioner's ability to say, with confidence, "the judiciary would never permit that," is one backstop against the type of action the President seems to envision. Or, were the FCC to cave, a swift reversal by the judiciary itself would provide another check. The strength of our judiciary distinguishes us from other countries where the freedom of the press has fallen under an authoritarian regime, such as Russia under Vladimir Putin and Turkey under Recep Tayyip Erdogan. So far, our judiciary has held strong, providing a critical obstacle to some of the administration's most egregious abuses, such as the cruel and pointless immigration ban. But as Trump appoints judges to seats long vacant due to congressional intransigence during the Obama administration, several commentatorshave noted that the character of the judiciary is beginning to change.
Given that President Trump—guided by his subordinates—is steadily altering the composition of the judiciary, it is essential to scrutinize his nominees’ views on the freedom of the press. The President's disturbing comments should shape all confirmation hearings going forward. Our elected representatives should, at a minimum, question every judicial nominee exceedingly closely about their views on the freedom of speech and of the press, and should vote against any nominee who will not explicitly renounce the President's most recent comments. Some commentators have suggested that perhaps the Senate should go even further, and should stop holding hearings altogether, given President Trump's flagrant disregard for the Constitution and for his conduct while in office.
For my part I am not sure whether the latter course of action is appropriate at this juncture, given the range of nominees currently in the pipeline. Some are fairly traditional conservatives, while others are extremists, and the distinction may warrant different treatment. Intriguingly, despite reports that he would never appoint anyone who had been #NeverTrump during the election, the President has recently nominated Justice Don Willett, who was identified #NeverTrump and whose views on key subjects such as immigration differ starkly from the President's. Perhaps the President's unforgiving persona is less absolute than he would like everyone to believe, or, alternatively, perhaps he has found that excluding #NeverTrump candidates such as Willett leaves a very shallow pool indeed.
The more important point, however, is that the Senate must be absolutely sure that a prospective judge respects the freedom of speech and of the press before confirming them to the federal bench. A free press and a strong judiciary are among the best bulwarks against authoritarianism, and we need one to have the other.