//  9/28/17  //  In-Depth Analysis

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.

It is now abundantly clear: President Trump is at “war” with the press.

On the campaign trail and in his first nine months in office, Trump and his administration have overtly labeled the mainstream press “the enemy of the American People,” barred major news organizations from attending daily White House briefings, and excoriated the press almost daily in the most inflammatory of terms. The Trump administration’s attacks on the press have set off a firestorm of criticism from defenders of the institutional press—and we think their pushback is unquestionably warranted. But we also think that even these defenders have mostly failed to appreciate the wider ramifications of the president’s narrative choice.

In earlier work, we describe something we call the process of governmental “enemy construction.” When officials do this, they use war rhetoric and other signaling behaviors to convey that a person or institution is not merely an institution that, although wholly legitimate, has engaged in behaviors that are disappointing or disapproved, but instead is an illegitimate “enemy” triggering exceptions to or the compromise of ordinarily recognized liberties. Our latest research, forthcoming in Arizona State Law Journal,explores how the Trump administration—in word and in deed—has engaged in enemy construction of the press and argues that the risks that accompany that characterization are grave. One major risk is that enemy construction of the press can become a compounding problem. It subverts the democracy-enhancing functions of the press and empowers the administration to delegitimize other institutions and construct other enemies—including the judiciary, the intelligence community, and certain races or religions.

In researching this process of enemy construction, we have focused on the ideas of German political theorist Carl Schmitt. Others, including Robert Post in his thoughtful recent Take Care contribution, are also engaging Schmitt’s theoretical structures in useful ways. We think it is unsurprising that scholars are reflecting upon Schmitt’s framework in the Trump era. We should emphasize that we engaged in our extensive investigation of Schmittian principles not because we find them persuasive on their own terms nor because we necessarily believe that Trump and his administration are students of Schmitt’s writings. Rather, we simply have observed that, whether purposefully or unwittingly, the Trump administration seems to be taking a page from Schmitt’s playbook.

Schmitt claimed that the sovereign must possess two interrelated powers:  the power to choose and declare enemies of the state and the power, in times of emergency, to invoke a “state of exception”—a realm outside of the constraints of law and ordinary norms. In the state of exception, the sovereign has essentially unlimited power to do as it pleases to neutralize threats to the political community’s way of life.

In Schmitt’s worldview, the essence of politics—its defining activity—is this struggle against the enemy. This enemy is not a private adversary a governmental leader individually hates, but rather a public enemy the leader identifies for everyone else as either an external or an internal threat to the community and the political unity of the state.

If we add up the evidence, we see that President Trump is unquestionably constructing the press as an enemy in the Schmittian sense. In the things he says, the things he does, and the things he forecasts, the president is consistently and unrelentingly delineating the press as an “other” that threatens the political unity of the state and that ought to be distrusted, countered, and perhaps ultimately stripped of ordinarily observed rights and liberties because of this exceptional status.

During the campaign—even before Trump explicitly labeled the press the “enemy of the people”—he engaged in a steady drumbeat of anti-press rhetoric—characterizing the press as “dishonest,” “lying,” “failing,” “disgusting,” “third-rate,” “bad,” and “scum.” Once elected, he escalated his rhetoric. In his first post-inaugural speech, he declared, “I have a running war with the media. They are among the most dishonest human beings on earth.” Within days, his chief strategist would speak of the press as “the opposition party,” and his press secretary would threaten to “hold the press accountable” for contradicting the president’s narrative about the size of inauguration crowds and for unfavorable coverage of his travel ban.

By mid-February, when the president held his first solo press conference in office, he made this war against the enemy press the predominant theme. He called the media “fake” nearly 20 times in roughly 70 minutes.He reinforced his “enemy of the people” tweet at a speech at which he asserted that the press “make up sources,” are “very dishonest people,” and “do a tremendous disservice to our country.” Using explicit “other” characterizations, he repeatedly stated that the media “doesn’t represent the people,” and “[has its] own agenda and it’s not your agenda and it’s not the country’s agenda.” We “have to fight it,” he said.

Since then, his drumbeat of anti-press rhetoric has continued, largely on Twitter. For example, the president has posted tweets attacking the mental health and physical appearance of news anchors, retweeted a video portraying him wrestling and punching a figure whose head was replaced by a cable news logo, and retweeted an image of a Trump train running over a reporter. The combined force of these constant depictions is categorical and scathing, creating an unprecedented state of affairs in the United States. The American people are told, nearly every time their president speaks, that they are a part of an “us” to which the media does not belong.

In addition to adversarial rhetoric, Trump’s overt actions toward the press signal its enemy outsider status. Trump has revoked the press credentials of some news organizations, refused to take their questions, abandoned traditions and norms of accommodating reporters, and suggested that more aggressive libel laws are necessary to reign in the threat the press poses to the public.

 Perhaps most significantly, but less often noticed, Trump casts the press as an enemy by anticipating its role as an internal enemy that will inevitably aid external enemies. One of the Trump administration’s most potent tools for anticipatorily undercutting the press is the accusation that the mainstream media—the “very, very dishonest press”—is downplaying the threat that “radical Islamic terrorism” poses by failing to report some terrorist attacks.  In July, President Trump doubled down on his suggestion that the media is aligned with the enemies of the United States when he accused the New York Times of thwarting important counterterrorism efforts.  This narrative implies that the media is somehow aligned or even complicit with the external enemy and advances the president’s enemy characterization in alarming ways.  

This behavior is unprecedented. Although some past presidents—most notably Nixon—have had serious personal tensions with the press, our research demonstrates that none have come even close to the unrelenting and public enemy construction that we see from Trump. Indeed, although many presidents likely shared some of President Trump’s inclinations to vilify the press, a sustained attempt by a U.S. president to construct the mainstream media as an enemy of the American people would have been virtually unthinkable just a generation ago. Today, however, the media is far more vulnerable to enemy construction, because both its financial resources and its public reputation are substantially diminished. Moreover, the president can now, more than at any other time in history, speak directly to the American people and so doesn’t need the press as his intermediary. He no longer feels compelled to preserve some relationship with the press or some modicum of press credibility.

What might be motivating Trump to make this bold move? One of the most troubling explanations is that this enemy construction can pave the way for the invocation of Carl Schmitt’s exceptionalism—a justifying of limitations on press freedoms. Taken to its logical conclusion in the press context, the Schmittian notion of the state of exception suggests that the president could reduce recognized press liberties on the grounds that he must neutralize the threat posed by the press and ensure the safety of the American people.  Thus, if President Trump’s campaign to establish the press as an “enemy of the American people” proves persuasive, that success may open the door to arguments in both legal and political forums that the security of the country justifies—or even requires—scaling back press freedoms and press access.

Even if courts stand firm against any executive invocation of exceptionalism to justify limits on constitutional protections for the press, the president could reduce traditional press protections using tools within the executive’s control.  The president could significantly impact the press’s capacity to do its job by influencing everything from accessibility and transparency to prosecutorial discretion about the application of the Espionage Act against journalists to Justice Department policies regarding when reporters can be subpoenaed to reveal their sources or when their phones can be wiretapped. All told, President Trump will have substantial power to control how much freedom the press is accorded, and his construction of the press as enemy suggests both his potential intent to limit traditional protections and the public justification he will offer for doing so.

The wider consequences of this pattern are grave. Limitations on press freedoms and access would threaten to undermine the press’s role as a watchdog, educator, and proxy. Subverting its ability to investigate, gather, and disseminate information of public importance directly damages our democracy. Moreover, there is an overarching risk that if we accept the enemy status of the press and the exceptions that flow from that status, we will enable the administration to engage in other potentially troubling enemy construction. When we undermine the press’s capacity to discover, synthesize, and publicize critical counter-narratives, the government will be all the more empowered to construct enemies out of other institutions and groups at which the president has already taken aim, such as the judiciary, the intelligence community, Mexican immigrants, and Muslims. 

The trend is clear. The president has not engaged in mere bombastic rhetoric about the press, but rather in classic Schmittian enemy construction. This pattern should not be discounted as puffery, but should be recognized for the dire risks that it poses—to working journalists, to our other critical institutions, to the most vulnerable among us, and to our democracy as a whole.

RonNell Andersen Jones is the Lee E. Teitelbaum Chair & Professor of Law, S.J. Quinney College of Law, University of Utah Law School. Lisa Grow Sun is Professor of Law at Brigham Young University’s J. Reuben Clark Law School.

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